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THE 


CONSTITUTIONAL  LAW 


OF    THE 


UNITED  STATES 


BY 

Westel  Woodbury  Willoughby,  Ph.  D. 

Professor  of  Political   Science,  Johns  Hopkins  University;  Managing- Editor 
American  Political  Science  Review;  Author  of  "  The  American  Con- 
stitutional System,"  "The  Supreme  Court  of  the  United 
States :    Its  Place  and  Influence  in  our  Consti- 
tutional System,"  "The  Nature  of  the 
State,"  "  Rights  and  Duties  of 
American     Citizen- 
ship," etc. 


VOL.  I 


NEW  YORK: 

BAKER,  VOORHIS  &  COMPANY 

1910 


622U4 


Copyright,  1910 
By  W.  W.  W1LLOUGHBY,  Ph.D. 


J.  B.  LYON   COMPANY 

PRINTERS  AND  BINDERS 

ALBANY  N.   Y. 


PREFACE. 


In  the  preparation  of  this  work,  the  aim  has  been  to  give  a 

logical  and  complete  exposition  of  the  general  principles  of  the 

constitutional  law  of  the  United  States.     The  effort  has  been  to 

ascertain  and  to  discuss  critically  the  broad  principles  upon  which 

*     have  been  founded  the  decisions  rendered  by  the  Supreme  Court 

^    of  the  United  States  in  the  leading  cases,  ancl  thus  to  present,  as  a 

v    systematic   whole,    a    statement   of  the   underlying  doctrines   by 

which    our    complex    system    of   constitutional    jurisprudence    is 

governed.     The  performance  of  this  purpose  has  required  that 

attention  should   be  devoted   rather  to  a   consideration  of  those 

4    principles  of  our  public  law  which  are.  fundamental,  and  especially 

of  those  the  possible  implications  of  which  are  not  yet  certainly 

*       determined,  than  to  a  statement  in  minute  detail  of  those  adjudi- 

**5    cations  which,  in  themselves,  establish  no  general  rule  of  law,  or 

illustrate  no  novel  application  of  one.     This  latter  task  is  one 

which  more  properly  belongs  to  compilers  of  digests  or  to  the 

authors  of  more   special   text-books.      It   is   confidently  believed, 

3    however,  that  in  the  present  work  no  really  important  case  has 

^    been  left  unnoticed. 

Such  merit  as  the  present  work  may  possess  must,  then,  con- 
in  its  systematic  arrangement,  and  in  the  fact  that,  with 
reference  to  the  constitutional  principles  which  are  discussed, 
it  fully  sets  forth  the  processes  of  judicial  reasoning  by  which 
they  have  been  established,  it  suggests  the  corollaries  which  may 
be  drawn  from  them,  and  it  indicates  the  relations  which  they 
bear  to  one  another  and  to  the  more  general  doctrines  of  Ameri- 
can public  law. 

Whenever  space  has  seemed  to  permit,  the  author  has  repro- 
duced the  language  of  the  Federal  Supreme  Court,  This  has 
n  eessitated  many  and,  at  times,  extended  quotations.  It  is  be- 
lieved, however,  that  this  practice  will  commend  itself  to  the 
reader.    Since  the  character  of  this  work  requires  in  any  case  that 

[iii] 


iv  Pkeface. 

the  arguments  should  be  given,  the  authoritative  language  of  the 
nation's  highest  tribunal  is  certainly  preferable  to  a  statement 
by  a  commentator  of  his  understanding  of  the  court's  ruling  or 
reasoning. 

The  author  desires  to  make  especial  acknowledgment  of  the 
very  great  assistance  which  he  has  received  from  Hon.  John  C. 
Rose,  United  States  District  Judge,  and  Dr.  Frank  J.  Goodnow, 
Professor  of  Constitutional  and  Administrative  Law  at  Columbia 
University.  Both  of  these  friends  have  generously  spared  the 
time  to  read  this  treatise  in  the  proof.  That  they  have  not,  how- 
ever, committed  themselves  to  all  of  the  positions  assumed  herein, 
hardly  needs  to  be  said. 

The  author  wishes  also  to  express  generally  his  debt  to  the 
various  law  magazines  published  in  this  country.  These  journals 
are  an  honor  to  American  legal  scholarship,  and  to  the  articles 
contained  in  them  the  author  owes  more  than  he  has  been  able 
specifically  to  acknowledge. 

In  conclusion,  it  may  be  added  that,  where  appropriate,  the 
author  has  repeated  language  used  by  him  in  an  earlier  and 
briefer  work  entitled  The  American  Constitutional  System. 

The  work  as  a  whole  is  based  upon  lectures  delivered  during 
recent  years  to  the  graduate  students  in  Political  Science  at  the 
Johns  Hopkins  University. 

June,  1910.  W.  W.  W. 


TABLE   OF   CONTENTS. 


VOLUME  I.  page. 

Preface iii 

Table   of    Contents v 

Table  of   Cases xxxi 

Text  of  the  Constitution lxix 

CHAPTER  I. 
The  Supremacy  of  the  Constitution. 

Section  1.  The  Courts  and  Unconstitutional  Laws 2 

2.  Marbury   v.  Madison    2 

3.  Criticism     3 

4.  The   expediency   of    this   judicial    power 7 

5.  The  courts  do  not  "  nullify  "  laws 10 

CHAPTER  II. 
Principles  of  Constitutional  Construction. 

Section     6.  Circumstances  under  which  the  courts  will  hold  an  act  of 

Congress    void 12 

7.  Legislative   motives    18 

8.  Expediency  and  reasonableness  of  legislation  not  subject  to 

judicial   determination    19 

9.  Presumption    in   favor   of   the   constitutionality   of   an   act 

of  Congress    20 

10.  Presumption   in   favor   of   the   constitutionality   of   a   state 

statute     • 22 

11.  The  force  of  contemporaneous  or  long  continued  legislative 

interpretation 25 

12.  Legislative  and  executive  practice  not  absolutely  binding.  26 

13.  Extrinsic    evidence     27 

14.  Technical    terms    28 

15.  The  interpretative  value  of   debates   in  constitutional  con- 

ventions    30 

16.  The  Federalist  31 

17.  History   of   the   times 32 

18.  The  interpretative  value  of  legislative  debates 33 

19.  Resort   to   the    preamble    for    purpose   of   construction....  35 

20.  "  We.    the    People  " 36 

21.  «'  Constitution  " 37 

22.  "  Common    defense    and    general    welfare  " 39 

23.  The  Constitution  is   to  be   construed  as  a  whole 40 

"24.~*So-called    "natural"   or   ''unwritten   constitutional"   laws 

have    no    constructive    force 41 

25.  The  "  spirit  "  of  the  Constitution 43 

[v] 


vi  Table  of  Contexts. 

page. 
Section  26.  Applicability  of  constitutional   provisions  to  modern   con- 
ditions    44 

27.  The  Wilson-Roosevelt  doctrine  of  construction 47 

28.  Stare  Decisis  51 

CHAPTER  III., 

The  Division  of  Powicrs  Between  the  United  States  and  its  Member 

States. 

Section  29.  Federal    powers 53 

30.  Express    and   implied   powers 54 

31.  Federal    powers   to   be   liberally  construed 55 

32.  Strict    construction    a    corollary    of     the    States'    Rights 

Doctrine 58 

33.  "  Necessary  and  proper  " 58 

34.  McCulloch   v.   Maryland 59 

35.  Administrative  necessity  as  a  source  of  federal  power....  62 

36.  International  sovereignty  and  responsibility  as  a  source  of 

implied  powers    64 

37.  Resulting  powers 65 

38.  Inherent  sovereign  powers J56 

39.  Express  limitations  upon  the  Federal  Government 70 

40.  Implied  limitations  upon  the  Federal  Government 72 

41.  Exclusive  and  concurrent  federal  powers 73 

CHAPTER  IV. 
The  Supremacy  of  Federal  Authority. 

Section  42.  Federal  supremacy 78 

43.  The  States  may  not  be  coerced 86 

44.  Conclusion 91 

CHAPTER  V. 

The  Maintenance  of  Federal  Supremacy:    The  Freedom  of  Federal 
Agencies  from  Interference  or  Control  by  the  States. 

Section  45.  State  taxation  of  federal   governmental   agencies 92 

46.  Property  of  federal  agencies  may  be  taxed 95 

47.  State  taxation  of  federal  franchises 00 

48.  State  taxation  of  patent   rights 100 

40.  State  taxation  of  federally  licensed  occupations 101 

50.  State  taxation  of  federal   salaries    102 

51.  State  taxation   of  federal  property 102 

r»2.  State  taxation  of  federal  secnritiea 103 

53.  Tncome  from  federal  securities  exempt  from  state  taxation.  107 

54.  State  taxation  of  circulating  notes  of  national  banks 107 

55.  State  taxation  of  bequests  to  the  United  States 108 

56.  State  taxation  of  national   banks    108 

57.  Federal  taxation  of  state  agencies 110 


Table  of  Contexts.  vii 

PAGE. 
Section  58.  Federal  taxation  of  property  of  municipalities 114 

59.  South  Carolina  v.  United  States 114 

60.  Federal  taxation  of  state  documents 118 

61.  Federal  exercise  of  eminent  domain  in  the  States 119 

CHAPTER  VI. 

The  Mainti :naxce  of  Federal  Supremacy:  Writs  of  Error  from  the 

Federal  Si -preme  Court  to  State  Courts. 
Section  62.  Writ*  of  error  to  state  courts 120 

63.  Martin  v.  Hunter's  Lessee 121 

64.  Cohens  v.  Virginia 121 

CHAPTER  VII. 

The  Maintenance  of  Federal  Supremacy:   Removal  of  Suits  from 
State  to  Federal  Courts. 

Section  65.  Right  of  removal  of  criminal  cases 124 

66  Tennessee  v.  Davis 125 

67.  Right  of  removal  in  civil  cases 129 

CHAPTER  VIII. 

The   Maintenance   of   Federal    Supremacy   by   Habeas   Corpfs   to 

State  Authorities. 

Section  68.  State  courts  may  not  interfere  with  federal  authorities. .  130 

69.  Issuance  of  the  writ  by  federal  courts 131 

70.  The  Xeagle  Case 135 

71.  Writ  issued  only  when  imperative 136 

CHAPTER  IX. 

The  Maintenance  of  Ffofral  Supremacy:    The  Independence  of 

Federal  Courts  from  State  Interference. 
Section  72.  Independence  of  federal  authorities 141 

73.  Injunctions  from  federal  to  state  courts 142 

74.  State  restrictions  upon  the  right  of  removal  of  suits  from 

state  to  federal  courts 145 

CHAPTER  X.  w 

TnE  Federal  Control  of  the  Form  of  State  Governments. 

Section  7">.  ^tate  autonomy    151 

76.  Republican    form   of  government    defined 151 

77.  The  constitutionality  of  referendum  laws 154 

78.  Dorr's  rebellion    156 

79.  Luther  v.  BoroVfl 158 

80.  The  reeonetroctiofl  of  Southern  States  after  the  Civil  War.  161 

81.  Restricted    suffrage    compatible    with    republican    form    of 

government    164 


viii  Table  of  Contents. 

page. 

(Section  82.  Public  office  not  a  property  or  contract  right   166 

83.  Suits  between  two  or  more  claimants  to  state  office 168 

84.  Taylor  v.  Beckham 171 

CHAPTER  XI. 

Federal  Supervision  of  State  Activities:    The  Fourteenth 
Amendment. 

Section  85.  The  Fourteenth  Amendment 175 

86.  The  Slaughter  House   Cases 177 

87.  Effect  of  Fourteenth  Amendment  upon  rights  enumerated 

in  first  eight  amendments 183 

88.  Suffrage  not  a  necessary  incident  of  citizenship 185 

89.  Legislative    power    granted    Congress    by    the    Fourteenth 

Amendment    186 

90.  Summary    - 193 

CHAPTER  XII. 
Interstate  Relations:    Full  Faith  and  Credit  Clause. 

Section  91.  States   independent  of  one  another 194 

92.  Congressional  legislation    195 

93.  Federal  judgments  and  decrees 197 

94.  Full   faith   and   credit   clause   applies   only    to   civil   judg- 

ments and  decrees 107 

95.  Full  faith  and  credit  clause  establishes  a  rule  of  evidence.  .  198 

96.  Judgments  in  rem  and  in  personam . .  . .  201 

97.  Xul  Tiel  Record 202 

98.  Marriage  and  Divorce 205 

CHAPTER  XIII. 

Interstate  Relations:    The  Comity  Clause. 

Section    99.  Privileges  and  immunities 213 

100.  Political  privileges * 215 

101.  State  proprietary  privileges 216 

102.  Privileges  of  one  State  not  carried  into  other  States 217 

103.  Corporations    not    citizens    within    the    meaning    of    the 

Comity  Clause    218 

CHAPTER  XIV. 

Interstate  Relations:    Extradition. 

Section  104.  Interstate  extradition  222 

105.  Extradition  by  the  States  of  the  Union  to  foreign  States.  224 

106.  Auxiliary  legislation  by  the  States 226 

107.  Judicial  examination  of  extradition  proceedings 226 

108.  Abduction  and   forcible  return  of  fugitives  fiom  justice.  228 

109.  Trial  for  offenses  other  than  those  for  which  extradited..  231 

110.  Who    is   a    "  fugitive  " 232 

111.  Fugitive  slaves   234 


Table  of  Contents.  ix 

CHAPTER  XV. 

Interstate  Relations:    Compacts  between  the  States  and  between 

the  I'mtii)  Status  and  the  States.  page. 

Section  112.  Compacts  between  the  States 235 

113.  Compacts  between  the  States  and  the  United  States 238 

114.  Equality  of  the  States 239 

11").  Contracts  in  re  proprietary  interests 242 

116.  Suits    between    States 243 

CHAPTER  XVI. 
The  Persons  Subject  to  the  Jurisdiction  of  the  United  States. 

Section  117.  Territorial   sovereignty    '. 244 

118.  De  facto   control    244 

119.  Status  of  aliens t  245 

120.  Double  allegiance   246 

121.  Status  of  aliens  in  the  United  States 248 

122.  Domiciled  aliens   249 

123.  Aliens  not  domiciled 250 

124.  Exclusion  and  expulsion   of   aliens 251 

12.5.  The  Chinese  251 

120.  Protection  of  the  persons  and  property  of  aliens 254 

CHAPTER  XVII. 

American  Citizenship. 

Section  127.  Citizenship   defined    258 

128.  State   and    federal    citizenship   distinguished 260 

129.  The  Died  Scott  Case 262 

130.  The   Fourteenth   Amendment 270 

131.  District  of   Columbia   and   Territories 273 

132.  Boyd  v.  Nebraska  criticized 273 

132a.  Wong    Kim   Ark    Case 274 

CHAPTER  XVIII. 
Naturalization. 

Section  133.  Naturalization  by  statute   280 

134.  Naturalization  by  annexation  of  territory  and  by  treaty..  284 

CHAPTER  XIX. 

Expatriation. 

Section  13">.  Denial  of  right  of  expatriation 286 

136.  Right  recognized,  by  United  States k 288 

CHAPTER  XX. 

The  Legal  STATUS  of  Indians. 

Section  137.  Indian  lands  292 

138.  The    legal    statu    of    Indians 294 


x  Table  of  Contexts. 

page. 

Section  139.  Federal  power  over  Indians 298 

140.  Congressional  legislation » 300 

141.  Federal  jurisdiction  exclusive:  Cherokee  Nation  v.  Georgia.  302 

142.  Worcester  v.  Georgia   304 

143.  Naturalization  of  Indians   by   statute 307 

144.  Disappearance  of  Indian  tribal  autonomy 308 

CHAPTER  XXI. 

TnE  Admission  of  New  States. 
Section  145.  The  admission  of  new  States 320 

CHAPTER  XXII. 
The  Poweb  of  the  United  States  to  Acquibe  Terettoby. 
Section  140.  The  right  to  annex  based  on  the  right  to  admit  new  States.       325 
147-  Annexation   of   Louisiana:    Views   of  Jefferson 328 

148.  Territories  as  embryo  States 332 

149.  -Trufagfll   ffiffff :    Taney's   views 334 

150.  Conclusions 337 

151.  The  right  to  annex  based  on  the  treaty  and  war-making 

powers \ 339 

152.  Power  of  the  United  States  to  alienate  territory 342 

CHAPTER  XXIII. 

The  Modes  in  Which  and  the  Purposes  fob  Which  Tebbitoby  May 

Be  Acquired    by  the  United  States. 
Section  153.  Constitutional   modes  of  acquiring  territory 344 

154.  Annexation   by  joint  resolution 344 

155.  Consent  of  inhabitants  of  annexed  territory  not  required.       347 

CHAPTER  XXIV. 

The  Constitutional  Sources  of  Power  of  Congbess  to  Govebn  the 

Territories. 

Section  156.  Power  to  govern   territories   not  questioned 351 

157.  Doctrines  of  the  Died  Scott  Case 353 

CHAPTER  XXV. 

TnE  Extent  of  the  Poweb  of  Congbess  to  Govebn  the  Tebbitobies. 

Section  158.  Power  to  govorn  absolute 362 

159.  Classes  of   territorial   governments 364 

160.  Constitutionality  of  these  governments 365 

161.  Territorial  governments  are  congressional  governments...       369 

CHAPTER  XXVI. 
Tin:  District  of  Columbia. 

Section  162.  The  government  of  the  District  of  Columbia 372 

163.  Places   purchased    378 


Table  of  Contexts.  id 

CHAPTER  XXVII. 

Military  and  Presidential  Government  of  Acquired  Territory. 

Section  164.  Conquest  or  military  occupation  does  not  operate  to  annex  paoh. 

territory 380 

165.  Authority   of  de  facto  governments 386 

166.  Status  of  conquered  domestic  territory 387 

167.  Presidential  governments    388 

CHAPTER  XXVIII. 
The  Annexation  of  Territory  by  Treaty. 

Section  168.  Congressional  action  not  needed  to  complete  annexation  of 

territory  acquired   by  treaty 392 

169.  Cross  v.  Harrison    393 

.     170.  De   Lima   v.   Bidwell 396 

171.  Dooley  v.   United   States 400 

172.  Duties  of  President  prior  to  congressional  action 403 

CHAPTER  XXIX. 

The  Distinction  between  Incorporated  and  Unincorporated 
Territories. 
Section  173.  Limitations  upon  powers  of  Congress 405 

174.  Possible  status  of  Territories  after  annexation 406 

175.  Unincorporated  territory    406 

176.  Distinction     between     incorporated     and     unincorporatel 

territories   407 

CHAPTER  XXX. 

The   Insular   Cases. 

Section  177.  Downea  v.   Bidwell    411 

178.  Position  of  •Justice  Brown 421 

170.  Argument    of    dissenting    justices 427 

180.  Summary  and  criticism  of  Downea  v.  Bidwell 429 

181.  Statu-  of   Hawaii:    Hawaii  v.  Mankiehi 432 

182.  Right  to   jury  held   not  to  be  fundamental 436 

183.  Alaska  incorporated:   Rasmussen  v.  United  States 438 

184.  Other    Insular   Cases 439 

CHAPTER  XXXI. 

CITIZENSHIP    IN    THE   TERRITORIES. 

Section  185.  Effect  of  cession  of  territory  on  citizenship  of  inhabitants.  443 

186.  Treaty    provisions    444 

187.  Statutory  provisions  447 

188.  Native  inhabitants  of  Porto  Rico  not  aliens:    Oonzales  v. 

Williams  .  .    448 


xii  Table  of  Contents. 

CHAPTER  XXXII. 

Foreign  Relations:    The  Treaty  Power.  page. 

Section  189.  The  federal  power  exclusive 450 

190.  The    federal    power    all-comprehensive  * 45 J 

191.  The  manner  of  exercise  of  the  treaty-making  power 455 

192.  The  negotiation  of  treaties 456 

193.  Powers  of  the  Senate 458 

194.  The  "  recognition  "  of  foreign  governments 461 

195.  The  power  of  the  Senate  to  amend  treaties 462 

196.  Foreign   States   held   to   a   knowledge   of   the   location   of 

treaty-making   powers    464 

197.  Plenary  powers  of  ratification 465 

CHAPTER  XXXIII. 

International  Agreements  Which  Do  Not  Require  the  Approval 
of  the  Senate. 

Section  198.  International  agreements  not  requiring  approval  by  Senate.  467 
190.  International  powers  of  the  President  as  Chief  Executive: 

International  correspondence   468 

200.  Protocols 469 

201.  Modi  Vivendi    47 1 

202.  International    agreements   entered   into    by   the   President 

under  his  military  powers 471 

203.  International    agreements    entered    into,    or    action    taken 

by  the  President,  by  virtue  of  authority  granted  him  by 
congressional  statute  472 

204.  International  agreements  entered  into,  or  action  taken,  by 

the   President  by   virtue   of   authority   granted   him   by 
congressional  statute   476 

205.  Extradition 479 

CHAPTER  XXXIV. 

Congressional  Legislation  for  the  Enforcement  of  Treaties. 
Section  206.  Treaties   cannot   appropriate   money 480 

207.  Congress  may  by  statute  abrogate  treaties 484 

208.  Whether  the  treaty-making  power  may  modify  or  repeal 

laws  enacted  by  Congress 485 

209.  Treaties  and  revenue  acts 488 

CHAPTER  XXXV. 

Constitutional  Extent  of  the  Treaty-Making  Power. 

Section  210.  Treaty-making  power  granted  without  express  limitations.        493 

211.  Implied  limitations    493 

212.  The  treaty-making  power  and  the  reserved  rights  of  the 

States 495 


Table  of  Contents.  xiii 

PAGE. 

Section  213.  Judicial  dicta  that  reserved  rights  of  the  States  may  not 

be  infringed 497 

214.  Instances   in   which  treaties  have  been   upheld  though  in- 

fringing the  reserved  rights  of  the  States 499 

215.  The  true  doctrine ......  502 

216.  Constitutional    limits   to   the   treaty-making   power 503 

217.  Legislative  powers  ancillary  to  treaty-making  powers....  506 

218.  The  treaty-making  power  may  not  "incorporate"  foreign 

territory  into  the  United  States 507 

219.  The   treaty-making  power   may   alienate   territory   of  the 

United  States  or  of  a  State  or  of  States 507 

220.  The  violation  of  treaties 513 

221.  Treaties  remain  internationally  binding  upon  the  United 

States  even  when  Congress  has  refused  the  legislation 
necessary  to  put  them  into  full  force  and  effect,  or 
when  it  lias  abrogated  them  by  subsequent  legislation, 
or  when  the  Supreme  Court  has  declared  them  uncon- 
stitutional         515 

222.  The  date  at  which  treaties  go  into  effect 517 

223.  The  denunciation  of  treaties 518 

224.  The  construction  of  treaties 518 

CHAPTER  XXXVI. 
The  Amendment  of  the  Federal  Constitution. 
Section  225.  The  amending  clause  519 

226.  Presidential  approval  not  required 520 

227.  Scope  of  the  amending  clause 521 

f  I1APTE11  XX XV II. 

Congress  :    Its    Organization  :    Privileges  of  Members. 

Section  228.  The  name  524 

229.  Qualifications  for  senators  and  representatives 524 

230.  Qualifications  determined  by  Congress 525 

231.  Disqualification  of  congressmen  to  hold  federal  offices....  528 

232.  Ineligibility  of  congressmen  to  offices,  the  emoluments  of 

which  have  been  increased 529 

233.  Privileges  of  members  of  Congress 530 

CHAPTER  XXXVIII. 

Election  of  Members  of  Congress. 

Section  234.  Monitors  of  the  House  of  Representatives :    their  appor- 
tionment among  States   533 

235.  The  mode  of  apportionment 535 

236.  Congressional  districts  536 

237.  Members    of    the    House    of    Representatives:    by    whom 

elected  537 


xiv  Table  of  Contents. 

page. 
Section  238.  The  right  to  vote  for  representatives  not  a  necessary  in- 
cident of  national  citizenship 537 

239.  Though    determined   by   state    law   the   right   to   vote    for 

representatives  is  a  federal  right 540 

240.  Federal  control   of  congressional   elections 543 

241.  Enforcement   clause   of   the   Fifteenth   Amendment 550 

242.  Disfranchising  clauses   of   the   Southern   States 551 

243.  The  power  of  the  United  States  to  compel  the  election  by 

the  States  of  representatives  to  Congress,  senators  and 

presidential  electors 555 

244.  Election   of   senators    557 

245.  Popular  election  of  senators 559 

246.  Vacancies  in  the  Senate 559 

247.  Vacancies  in   the   House  of   Representatives 560 

CHAPTER  XXXIX. 

The  Process  of  Legislation  as  Constitutionally  Determined. 

Section  248.  Constitutional  provisions  561 

249.  Conclusiveness  of  the  records  of  congressional  proceedings.  562 

250.  Constitutional  force  of  rules  of  the  House  and  Senate..  564 

251.  Revenue   measures    566 

252.  Appropriation  acts 567 

253.  Presidential  participation  in  law  making     567 

254.  Resolutions 568 

255.  Parts  of  bills  may  not  be  vetoed 568 

256.  Riders 569 

257.  May  bills  be   signed  by  the   President  after  the  adjourn- 

ment  of   Congress  ? 569 

258.  Signing  of  bills  during  recess  of  Congress 571 

CHAPTER  XL. 

The  General  Powers  of  Congress. 

Section  259.  General  powers  573 

CHAPTER  XLI. 
Federal  Powers  of  Taxation. 

Section  260.  Taxes   defined    575 

261.  Taxation  and  eminent  domain 576 

262.  The  extent  of  the  taxing  power 577 

263.  The  use  of  the  taxing  power,  not  for  revenue  but  for 

regulation 678 

264.  Federal  powers  of  taxation 5S2 

265.  Taxes,  duties,  imposts,  and  excises  defined 582 

266.  Limitations  upon  the  federal  taxing  power 582 

267.  Due   process  of   law   and   taxation 583 

268.  Taxation  must  be  for  a   public  purpose 5S5 


Table  of  Contents.  xv 

page. 

Section  2G0.  Power  of  Congress  to  appropriate  money 588 

270.  Equality  in  taxation   593 

271.  rniformity  in   taxation 596 

272.  What     constitutes     uniformity     throughout     the     United 

States   598 

273.  State    inheritance    taxes 599 

274.  Federal   inheritance  taxes 602 

27">.  Protective  tariffs   607 

276.  Bounties    607 

277.  Export    duties    608 

278.  Direct   taxes    613 

27!'.  Income  tax  cases:   Pollock  v.  Farmers'  L.  &  T.  Co 616 

280.  The  federal  corporation  tax  of  1909 619 

281.  Federal  inheritance  taxes  not  direct 620 

282.  Federal  taxation  and  due  process  of  law :  hearing  required.  621 

283.  Hearing   before   administrative   tribunal   sufficient 622 

284.  Summary  modes  of  collection. 624 

285.  Notice     625 

2S6.  Borrowing  power  of  the  United  States:    legal  tender....  626 


VOLUME  n.   . 

CHAPTER  XLII. 

Interstate  and  Foreign  Commerce. 

Section  287.  The  Commerce  I  lause:    its  importance 629 

288.  Purpose  of  the   Commerce  Clause 630 

289.  Commerce  denned:     transportation  essential 631 

290.  The  instrumentalities  of  commerce 631 

291.  Commerce   embraces   wait  r   navigation 632 

292.  The  transportation  of  persons  is  commerce 633 

293.  Bills   of »  exchange   not   articles   of  commerce 633 

294.  Insurance   not  commerce 634 

295.  Lotteries    638 

298.   Bearing  of  the  lottery  decision  on  insurance. 639 

297.  Commerce  t   include   the   production  of  the  com- 

modities  transported    640 

298.  Intent  to  export  not  controlling 641 

299.  Interstate  commerce  includes  the  sale  of  the  articles  im- 

ported       642 

The  original   package   doctrine 643 

301.  Difficulties  in  applying  original  package  doctrine 645 

302.  Summary:    General  definitions  of  commerce 650 

303.  Exclnaivanaat  of  federal  control  over  interstate  commerce.  990 

304.  Gibbons   v.    Ogden 651 

305.  New  York   v.   Miln 655 


xvi  Table  of  Contents. 

page. 

Section  306.  License  Cases 656 

307.  Passenger    Cases    658 

308.  Cooley  v.   Port  Wardens 658 

309.  Subjects  of  local  regulation  by  the  States 660 

310.  The  police  powers  of  the  States  and  commerce 661 

311.  Applications  of  the  doctrine  of  the  police   powers  of  the 

State  in  their  relation  to  interstate  commerce 665 

312.  State  regulation  of  interstate  trains ^  .  . .  665 

313.  State  inspection  laws    670 

314.  State  quarantine  laws    674 

315.  Federal   quarantine   laws 676 

316.  State  game  laws 07b' 

317.  The  States  may  absolutely  exclude  from  their  borders  only 

such   articles  as  are  intrinsically  not  merchantable   or 

not  legitimate  articles  of  commerce 678 

318.  Liquor   legislation 680 

319.  The  Wilson  Act 681 

320.  Construction  of  the  Wilson  Act 683 

321.  Proposed    legislation 693 

322.  Oleomargarine   cases 694 

323.  The  States  and  foreign  corporations  doing  an  interstate 

commerce    business    695 

324.  Foreign  corporations  "doing  business"  within  the  States.  698 

325.  What  constitutes  "  doing  business  "  in  the  State 699 

326.  State   taxation  and  interstate  foreign   commerce 699 

327.  License   taxes    701 

328.  Taxation  of  foreign  corporations 702 

329.  State  tax  law  must  not  discriminate  against  products  of 

other  States,  or  against  companies  doing  an  interstate 

commerce    business    703 

330.  Drummers    705 

331.  Peddlers    709 

332.  State  taxation  of  articles  of  commerce 711 

333.  State  taxation  of  goods  in  transit 712 

334.  State  taxation  of  persons   in   transit 714 

335.  Taxation  of  property  of  interstate  carriers 714 

336.  Assessment   of    property    of    interstate    carriers   for   pur- 

poses of  taxation . 716 

337.  Vessels:    Rolling  Stock:    unit  of  use  rule 717 

338.  State  taxation  of  receipts  from  interstate  commerce....  720 

339.  Taxation  of  net  receipts 724 

340.  Charter   provisions    724 

341.  Taxation   of   capital    stock    of   interstate   commerce    com- 

panies      725 

342.  State    regulation    of    carriers 726 

343.  State  regulation  of  railway  rates   728 

344.  Routes  running  outside   of  the   State  but  with  both  ter- 

minals within   the  State 732 


Table  of  Contents.  xvii 

CHAPTER  XLIII. 

Federal  Legislative  Poweb  over  Interstate  Commerce.  page. 

Section  345.  Federal  legislation     734 

346.  Federal  police  regulations   735 

347.  Prohibition  of  interstate  commerce 736 

348.  Federal   regulation  of  child  labor 738 

349.  The  Federal  Employers'  Liability  Law  of  1906 741 

350.  Employers'  Liability  Law  of   1908 743 

351.  Federal  Safety  Appliances  Acts 744 

352.  Federal  Eight  Hour  Law 745 

353.  Trade  unions  and  interstate  commerce;  federal  legislation 

with  reference  to 746 

354.  Regulation  of  interstate  railroad  rates 748 

355.  The  right  of   Congress  to  delegate  its  rate-making  power 

to  a  commission 749 

356.  The  federal  anti-trust  act 750 

357.  In  re  Greene 751 

358.  United  States  v.  E.  C.  Knight  Co 752 

359.  United  States  v.  Tranv -Missouri   Freight  Association....  753 

360.  United  States  v.  Joint  Traffic  Association 753 

361.  Hopkins  v.   United  States 754 

362.  Anderson  v.  United  States 755 

362a.  Addyston  Pipe  &  Steel  Co.  v.  United  States 755 

363.  Montague  v.  Lowry 756 

364.  Northern  Securities  Case 756 

365.  Beef  Trust  Case 758 

366.  Danbury   Hatters  Case 759 

367.  Other  cases    761 

368.  The  Commodities  Clause  of  the  Hepburn  Act  of  1906 762 

369.  Federal    control    of    corporations    under    the    Commerce 

Clause    763 

370.  Power  of  the   Federal   Government  to  charter  companies 

to  do  a   manufacturing  business  within  the  States....  764 

371.  Federal  permission  to  state  manufacturing  companies  to 

engage  in  interstate  commerce 766 

372.  Federal  taxing  power  and  interstate  commerce 767 

373.  Federal  control  of  navigable  waters   768 

374.  Federal  control  of  foreign   commerce    769 

375.  Commerce  with  the  Territories  and  with  the  District  of 

Columbia    773 

376.  Commerce  with  the  Indians 773 


CHAPTER  XLIV. 
Other  Powers  of  Congress. 

yaturulization. 
Section  377.  Naturalization    774 

ii 


xviii  Table  of  Contexts. 

Bankruptcy.  PAGE. 

Section  378.  Bankruptcy :    Definition  of 774 

379.  Federal  power  not  exclusive 775 

380.  State  bankruptcy  laws  and  the  obligation  of  contracts..  770 

381.  State  laws  have  no  extraterritorial  force 770 

382.  Uniformity     777 

383.  Due  of  process  of  law 779 

384.  State  laws  suspended  but  not  annulled  by  Federal  Bank- 

ruptcy Law.     Effect  of  the  law  of  1898 779 

Coinage  and  Standards  of  Weights  and  Measures. 

385.  Coinage     780 

386.  Weights  and  measures 781 


Counterfeiting. 

387.  Counterfeiting     781 

388.  The  passing  and  the  uttering  of  counterfeit  coin  distinct 

offenses  781 


Postal  Service. 

389.  Federal   power    782 

390.  Constitutional   views   of  Munroe 783 

391.  Federal  power  to  provide  postal  agencies 7  ^4 

392.  Exclusion   from   the   mails:     freedom   of  press:     searches 

and   seizures :     Ex  parte  Jackson 784 

393.  Ex   parte   Rapier 788 

394.  Power  of  the  States  to  exclude  from  their  borders  objec- 

tionable   mail    matter 790 

395.  States  may  not  maintain  postal  agencies 790 

396.  Fraud   orders    791 

397.  Protection  of  the  mails:    In  re  Debs 791 


,  Patents  and  Copyrights. 

398.  Patents    792 

399.  Copyrights :     trade-marks    793 

Piracies  and  Felonies  on  the  High  Sens  and  Offenses  against  the  Laic 

of  Nations. 

400.  Piracies,  etc 794 


War. 

401.  Declaration    of    war 705 

402.  Civil    war 796 

403.  Letters  of  marque  and  reprisal  and  captures  on  land  and 

water     70S 

404.  Other   military   ]i  wers 798 


Table  of  Coxtkxts.  x:x 

CHAPTER  XLV. 

Prohibitions  on  Congress.  page. 

Section  405.  Absolute  and  qualified   prohibitions 799 

406.  Importation    of    slaves 800 

407.  Suspension   of   habeas  corpus 801 

408.  Bills    of   attainder 801 

409.  Ex  post  facto  legislation 803 

410.  Appropriations    805 

411.  Limitations  with  respect  to  the  definition  and  punishment 

of  crime   806 

412.  Jury   trial    806 

413.  Jury   trial    in    the    District   of    Columbia   and   the   Terri- 

tories     807 

414.  Unanimity    807 

415.  Twelve   jurors   required 808 

416.  Courts  and  actions  in  which  jury  is  not  required 808 

417.  Petty    offenses    810 

418.  Infamous   crimes    811 

419.  Waiver   of    constitutional    guaranties 813 

420.  Right  to  jury  trial  not  fundamental 815 

421.  Speedy   trial    815 

422.  Public    trial     816 

42.3.  Double   jeopardy    c 816 

424.  What  constitutes  jeopardy 818 

425.  Jeopardy  and  the  right  of  appeal 820 

426.  The    constitutionality    of    appeal   by   the   government   in 

criminal    cases    822 

427.  Self-incrimination:  immunity  from,  not  a  requirement  of 

due  process  of   law 823 

428.  Self- incrimination :    what  constitutes 825 

429.  Right   may   be   waived 825 

430.  When   right  may  be   claimed 826 

431.  To  compel  testimony  statutory  immunity  must  be  com- 

plete      826 

432.  Corporations    not    protected    against   testimony   by   their 

agents    827 

433.  Private  books  and  papers 828 

434.  Unreasonable  searches  and  seizures 828 

435.  Corporations  protected   829 

436.  Boyd    v.    United    States 829 

437.  Cruel   and   unusual   punishments 830 

438.  Treason     833 

439.  May  be  committed  by  aliens 834 

440.  Domicile    not   necessary ' 834 

441.  Xn   distinction    in  United  States  between  high   and  petit 

treason     835 

442.  Misprision  of  treason    835 

443.  What    constitutes    treason 835 

444.  Enlistment  of  men  does  not  amount  to  levying  war 836 


xx  Table  of  Contents. 

page. 

Section  445.  Treason  against  a  State  of  the  Union 839 

446.  Offenses,   other   than   treason,  against  the   existence  and 

operations  of  the  Federal  Government 839 

447.  Jury  trial  in  civil  suits 840 

448.  Waiver  of  jury  in  civil  cases 841 

449.  Religious   freedom 841 

450.  Freedom  of  speech  and  press 842 

451.  Seditious   libel    845 

452.  The  right  peaceably  to  assemble  and  petition 845 

453.  The  right  to  bear  arms 846 

454.  The  quartering  of  troops 848 

455.  Slavery  and  involuntary  servitude 848 

456.  Enforcement  clause  of  the  Thirteenth  Amendment 848 

457.  Involuntary   servitude:     peonage 850 

458.  Seamen    853 

459.  Contracts  for  personal  services:     enforcement  of 854 

CHAPTER  XLVI. 

Due  Process  of  Law. 

Section  460.  Due  process  of  law:   definition  of 856 

461.  Historical   inquiry  not  conclusive 858 

462.  Rules  of  evidence  and  procedure  may  be  changed 860 

463.  Appeal  not  essential  to  due  process 862 

464.  Confronting   witnesses    863 

465.  Trials  in  courts  of  law  not  essential 863 

466.  Unessential    statutory    formalities 864 

467.  Fixed  interpretation  of  laws  not  guaranteed 864 

468.  Due  process  and   substantive  rights 865 

469.  Per  legem   terrae 865 

470.  Distinction  between  English  and  American  constitutional 

doctrines     865 

471.  Doctrine   adopted   that   due    process   includes    substantive 

rights    868 

472.  Erroneous  interpretation  of  the   law 868 

473.  Life   872 

474.  Liberty    872 

475.  Equal  protection  of  the  law 873 

476.  The  Federal  Government  and  the  obligation  of  contracts.  874 

CHAPTER  XLVII. 
•       Prohibitions  Laid  Upon  the  States. 

Section  477.  Prohibitions  upon  the  States 877 

478.  Bills   of   credit 878 

479.  Ex  post   facto   legislation 881 

480.  Equal  protection  of  the  law 881 

481.  Corporations  protected    882 


Table  of  Contents. 


xxi 


PAGE. 

Section  482.  Illustrative    cases    arising    under    the    Equal    Protection 

Clause   884 

483.  Equal  protection  of  the  law  does  not  control  the  grant  of 

political    rights    886 

484.  Classifications     886 

485    Classifications   must  be   reasonable 881 

486.   State  laws  and  judicial  systems  not  required  to  be  unij 

form  throughout  the  State 888 

.    487.  Equal    protection:      requires    similar    but    not    the    same 

privileges    889 


CHAPTER  XLVIII. 

The  Obligation  of  Contbacts. 

Section  488.  The  Obligation  of  Contracts  Clause 891 

489.  Changes  in  means  or  manner  of  enforcement  of  contracts.  892 

490.  Contracts  may  be  validated  by  curing  technical  defects.  892 

491.  Contracts  by  the  State  not  to  tax. ." 892 

492.  Contracts  to  which  a  State  is  a  party 893 

493.  What   constitutes   a   contract 893 

494.  Foreign    corporations :     permission   to  do  business   within 

the  State   894 

495.  •C  barters   of  public   corporations 895 

4'.Hi.  Contracts  by   municipal  corporations 896 

4!»7.  C barters  of  private  corporations  are  contracts:    The  Dart- 
mouth   College   Case 897 

498.  Charter  gi ants   strictly  construed 898 

499.  Charles    River  Bridge  Co.  v.  Warren  Bridge  Co 899 

500.  Other  cases    900 

501.  Regulation  of  charges  of  public  service  corporations....  901 

502.  The  police  power  and  the  obligation  of  contracts 902 

60S.  Tax  exemptions   905 

504.  Impairment  of  contracts  by  taxation 907 

505.  Instances  of   incapacity  of  the  States  to  contract 908 

506.  Regulation    of    rates 909 

507.  Eminent  domain  and  the  obligation  of  contracts 910 

5<>S.  The  construction   of  contracts 911 

509.  Existence  of  a  contract  a  federal  question 912 

510.  Constitutionality   of    state    laws    alleged    to    impair   con- 

tracts   a    federal   question 913 

511.  Decisions  of  state  courts:    how  far  controlling  in  federal 

courts    914 

512.  Doctrine  in  cases  reaching  the  Supreme  Court  by  writs  of 

error   to   state  courts 916 

513.  McCullougb    v.    Virginia 917 

514.  Muhlker  v.  N.  Y.  ft  11.  Ry.  Co 918 

515.  Refusal  of  federal  courts  to  follow  state  decisions  holding 

■    laws    void 920 


xxii  Table  of  Contents. 

page. 
Section  516.  Distinction  between  cases  coming  to  the  Supreme  Court 
by  writs  of  error  to  state  courts,  and  those  originating 

in   lower  federal  courts ''21 

517.  Cases  based  on  diversity  of  citizenship 921 

518.  Gelpcke   v.    Dubuque 922 

519.  Extension  of  the  doctrine  of  Gelpfcke  v.  Dubuque 925 

520.  Great  Southern  Fireproof  Hotel   Co.   v.   Jones 925 

CHAPTER  XLIX. 

Constitutional  Limitations  upon  the  Taxing  Powers  of  the  States. 

Section  521.  Constitutional    provisions    927 

522.  Special  assessments 928 

523.  Taxes  and  special  assessments  distinguished 929 

524.  Constitutional  requirements  of  special  assessments 930 

525.  Resort  to  special  assessments  discretionary  with  the  legis- 

lature      931 

526.  Special  assessments  in  excess  of  benefits 933 

527.  Doctrine  of  Norwood  v.  Baker 933 

528.  Norwood  v.  Baker  explained  and  limited  by  later  cases.  936 

529.  Summary    943 

530.  Property   taxed  must  be  within   the  jurisdiction  of  the 

State   943 

531.  Personal  liability  of  property-owners 944 

532.  Incorporeal    hereditaments.      Franchises,   etc 945 

533.  Taxation  of  tangible  personal  property 946 

534.  Taxation  of  property  situated  in  several  jurisdictions....  949 

535.  The  unit  rule 950 

536.  Adams  Express  Co.  v.  Ohio 951 

537.  Taxation  of  capital  stock  companies  operating  in  two  or 

more   States    954 

538.  Taxation   of   movables    H.14 

539.  Taxation  of  intangible  personal   property 955 

540.  Doctrine  of  state  tax  on  Foreign  Held  Bonds  Case 955 

541.  Taxation  of  shares  of  stock    957 

542.  Taxation  of  mortgages    960 

543.  The  taxation  of  credits 961 

544.  Taxation  of  franchises    966 

545.  Taxation  of  good  will 969 

546.  Tax  exemptions  and  the  impairment  of  contracts 968 

547.  Double    taxation    968 

CHAPTER  L. 

The  Fkdervl  Judiciary.    Its  Organization. 

Section  548.  Constitutional    provisions 970 

549.  Inferior  federal  courts 971 

550.  The  Supreme  Court :    its  organization 971 


Table  of  Contexts.  xxiii 

PAGE. 

Section  551.  Circuit  courts   of  appeal:     organization , 972 

552.  Circuit  courts :     organization    972 

553.  District  courts :     organization 972 

554.  Court  of  claims :     organization 973 

555.  Judiciary  of  the  District  of  Columbia 973 

550.  The  Supreme  Court:     original  jurisdiction 973 

557.  Inferior  courts  may  be  granted  jurisdiction  of  cases  within 

the  original  jurisdiction   of  the  Supreme   Court 974 

558.  The  Supreme  Court:    appellate  jurisdiction 975 

559.  Appeals  from  circuit  and  district  courts 97G 

560.  Appeals  from  circuit  courts    of    appeal 977 

561.  Appeals  from  territorial   and   other   courts 978 

562.  Writs  of  error   to   state  courts . . ...  978 

5t>3.  Circuit  courts   of   appeal :     jurisdiction 980 

564.  Circuit  courts :     jurisdiction    980 

565.  District    courts :      jurisdiction 981 

566.  Court  of  claims:    jurisdiction 982 

567.  Jurisdiction  of  federal  courts  based  on  diversity  of  citizen- 

ship     984 

568.  Citizenship  of  corporations 984 

569.  National    banks    986 

570.  Federally  chartered  corporations 986 

571.  Fictitious  citizenship    987 

572.  Federal  jurisdiction  of  cases  arising  under  the  Constitu- 

tion, treaties,  and  acts  of  Congress 987 

573.  Removal  of  suits  from  state  to  federal  courts 989 

574.  Concurrent    state   judicial    powers 990 

575.  Statutory    provision    for    removal    from    state    to    federal 

courts    994 

576.  Congress  may  not  confer  jurisdiction  upon  state  courts..  997 


CHAPTER  LI. 

Political  Questions. 

Section' 577.  Political    questions 999 

578.  Cherokee   Nation   v.    Georgia 1000 

579.  Georgia  v.  Stanton 1001 

580.  Existence  and  territorial  extent  of  sovereignty 1003 

581.  War:    belligerency:    neutrality 1005 

:>v_\  Treaties    1007 

r>s;s.    Diplomatic   agents    1007 

584.  Other   political   questions 1008 

585.  Suits   between   the   States 1009 

586.  Courts  will   assume   jurisdiction  when   private  rights   in- 

volved      1009 

587.  Courts  will  not  perforin  non-judicial  functions 1011 


xxiv  Table  of  Coxtemts. 

CHAPTER  LII. 

The  Law  Administered  by  the  Federal  Courts.  page. 

Section  588.  Federal  courts  and  international  law 1013 

589.  Federal  criminal  law    1019 

590.  Federal  courts  and  the  construction  of  state  law 1020 

591.  Force    of    state    interpretations 1022 

592.  Rule  not  one  of  constitutional  necessity :    exceptions 1024 

593.  Equity 1024 

594.  Rules   of   evidence 1020 

595.  Unsettled  construction  of  state  law 1028 

596.  Obligation  of  contracts  and  the  construction  of  state  law.  1030 

597.  Federal  courts  and  the  common  law 1030 

598.  Interstate  commerce  and  the  common  law 1032 

599.  General   principles   of   the   common   law   as   distinguished 

from  their  special   and   local  applications 1033 

600.  General  commercial  law:    Swift  v.  Tyson 1034 


CHAPTER  LIII. 

Suits  between  States  and  to  Which  a  State  or  the  United  States 
is  a  Party  Plaintiff. 

Section  601.  Constitutional  provisions   1040 

602.  Boundary    disputes    1041 

603.  Maladministration  of  laws  of  a  State  to  injury  of  citizens 

of  another  State  not  justiciable  in  a  suit  between  the 

States    1044 

604.  State  as  parens  pat) ice:  Missouri  v.   Illinois 1046 

605.  Irrigation  rights:    Kansas  v.  Colorado 1048 

606.  Justiciable   quasi-sovereign   rights  of   the   States 1053 

607.  New  Hampshire  V.  Louisiana  and  South  Dakota  v.  North 

Carolina    1054 

608.  Suits  of  States  against  individuals 1054 

609.  Suits  between  the  United  States  and  a  State  of  the  Union.  1057 

610.  Suits  between  a  State  and  foreign  States  or  their  citizens.  1059 


CHAPTER  LIV. 

The  Suability  of  States. 

Section  611.  A  sovereign  State  may  not  be  sued  without  its  consent..     1061 

612.  Chisholm   v.    Georgia    1063 

613.  The    Eleventh    Amendment 1064 

614.  South   Dakota  v.   North  Carolina 1066 

615.  The  Eleventh   Amendment  does  not  apply  to  suits  insti- 

tuted  by   a   State:     Cohens   v.   Virginia 1070 

616.  Corporations    chartered    by,    and    of    which    the   State   is 

a   stockholder,  may  be  sued 1073 


Table  of  Contents.  xxv 

PAGE. 

Section  617.  Effect  of  Eleventh  Amendment  upon  federal  constitutional 

rights  guaranteed   against   state   violation 1073 

618.  Suits  against  state  officers:    when  considered  suits  against 

the  State   1074 

619.  United  States  v.  Peters    1075 

620.  United  States  v.  Bank  of  the  United  States 1076 

621.  Rule  as  to  States  being  parties  of  record 1078 

622.  Mandamus    to   state    officials 1079 

623.  The   Virginia  debt  controversy 1084 

624.  In  re  Ayres 1089 

625.  Reagan   v.  Trust  Co 1091 

626.  Fitts  v.  McGhee 1092 

627.  In  re  Young 1093 

628.  Suits  to  recover  specific  pieces  of  property  held  by  the 

State    1096 

629.  Set-offs  against  the  State 1096 

630.  Liens   1097 

631.  The  Arlington   Case:     United  States  v.   Lee 1098 

632.  The  doctrine  of  United  States  v.  Lee  applied  to  a  State. .  1100 

633.  Suit    maintainable    only    where    the    action    against    the 

officer  is  a  possessory  one 1101 

634.  Recent  cases    1 102 

635.  Suability  of  minor   political  bodies 1104 

636.  Statutory  consent  of  the  United  States  and  of  the  States 

to  be  sued 1105 


CHAPTER  LV. 

Admiralty  and  Maritime  Jurisdiction. 
Section  637.  Admiralty   and    maritime   jurisdiction    defined 1107 

638.  Extent    of    admiralty    jurisdiction 1108 

639.  Admiralty  jurisdiction  extends  to  navigable  waters  wholly 

within  a  State 1110 

640.  Extent  of  federal  admiralty  jurisdiction 1111 

641.  Canals   1112 

642.  Repairs  on  land  and  in  dry  dock 1112 

643.  Admiralty   jurisdiction    does   not   carry    with    it    general 

jurisdiction   over   navigable  waters 1113 

644.  Admiralty    courts     1113 

645.  State    legislative    powers    with    reference    to    admiralty 

matters   1114 

646.  Legislative    powers   of    Congress    flowing   from    admiralty 

and   maritime   jurisdiction    1117 

647.  The  determination  of  the  sphere  of  admiralty  jurisdiction 

a  judicial  question    1118 


xxvi  Table  of  Contents. 

CHAPTER  LVI. 

Impeachment.  page. 

Section  648.  Constitutional    provisions    1121 

649.  Persons   subject  to   impeachment 1121 

650.  Who  are  civil  officers , 1 122 

651.  When  may  a  civil  officer  be  impeached 1122 

652.  For  what  offenses  impeachment  will  lie 1123 

653.  Punishment 1 124 

654.  Effect  of  dissolution  of  Congress 1124 

CHAPTER  LVII. 
The  Election  of  the  President  and  Vice  President. 

Section  655.  The  executive  department 1125 

656.  Apportionment  of  presidential  electors:  plenary  powers  of 

the  States    1125. 

657.  Vacancies 1 127 

658.  Original    provisions    of    Constitution    as    to    election    of 

President  and  Vice  President:  Inadequacy  of 1128 

659.  Twelfth   Amendment    1 129 

660.  Counting  the    votes    1 130 

661.  Law   of    1887 1131 

662.  Constitutionality   of    1132 

663.  Criticism  of  the  act  of  1887 1135 

CHAPTER  LVTII. 

Presidential  Succession. 

Section  664.  Constitutional  provisions   1141 

665.  Act   of   1792    1141 

666.  Act  of  1886   1144 

667.  Questions    undetermined    by 1145 

668.  Third  term    1147 

CHAPTER  LTX. 
The  Powers  and  Duties  of  the  President. 

Section  669.  The  oath  of  office 1150 

670.  Constitutional  powers  of  the  President  as  Chief  Executive.  1150 

671.  The  Ncagle  Case    1 152 

672.  The  President  as  administrative  chief 1156 

673.  Original   intent   that   the   President   should   be   primarily 

a   political   chief:    congressional   control   of   administra- 
tion      1150 

674.  Development  of  the  administrative  powers  of  the  President.  1158 

675.  President   acts  through   the  heads   of  departments 1159 

676.  Except  where  his   personal  judgment   is   demanded 1160 

677.  Administrative    appeals     1161 


Table  of  Contexts.  xxvii 

PAGE. 

Section  678.  Administrative  decentralization  in   the   States 11(53 

07!).  Increasing  integration   of  federal   administration 1163 

680.  Administrative    interpretations    1164 

081.  Administrative    regulations     1164 

682.  Power    of   the    President   to    control    the    institution    and 

prosecution  of  suits  by  the  Department  of  Justice....  1166 

683.  Information   to   Congress    1167 

684.  The   President's   control   of   foreign   relations 1170 

685.  The  veto  power  of  the  President 1170 

686.  The  President's  pardoning  power 1170 

687.  The  pardoning  poWer  may  not  be  limited  by  Congress..  1171 

688.  Acts  of  amnesty  and  remission  of  penalties 1172 

6S9.  Suspension    of    sentences 1173 


CHAPTER  LX. 
The  Appointment  and  Removal  of  Officers. 

Section  690.  Constitutional  provisions   1174 

691.  "Officer"  of   the   United   States   defined 1174 

092.  Inferior   officers    1175 

693.  Nominations 1176 

694.  Creation  of  offices   1178 

0!).">.   Appointing  powers  of  Congress 1178 

090.  Appointing   powers    may   be   vested   only   as   provided   by 

the  Constitution  1180 

697.  Civil  service  requirements   1180 

60S.  The   power  of  removal 1181 

699.  Congress  may  regulate  the  removal  of  inferior  officers..  1185 

700.  Injunctions    to   prevent    removal 1185 

701.  Mandamus  to   reinstate  in  office 1186 

702.  The  powers  of  removal  by  state  governors 1187 


CHAPTER  LXI. 

Military  Law. 

Section  703.  Military  powers  of  the  general  government 1190 

704.  .Military  law:  with  reference  to  members  of  the  army  and 

navy 1191 

705.  Articles  of  war    ( 1192 

706.  Obligation    assumed   by  enlistment 1193 

707.  Powers  of  the  military  eonHH&Itder 1196 

708.  Courts  martial    1197 

709.  Powers  of  courts  martial:   jurisdiction  of  civil  courts  to 

r<view   proceedings  of    1198 

710.  Jurisdiction  of  courts  martial  over  offenses  which  are  also 

violations  of  the    local   civil    law 1200 


xxviii  Table  of  Contents. 


PAGE. 


Section  711.  The  power  of  Congress  to  vest  in  military  tribunals  ex- 
clusive jurisdiction  over  all  offenses  committed  by 
military    persons,    including    offenses    which    are    also 

crimes  against  the  civil  law 1203 

712.  Powers  of  military  tribunals  in  times  of  war 1206 

713.  Powers  of  the  Commander  in  Chief  of  the  army  and  navy..  1207 

714.  Declaration  of  war    1208 

715.  The  prosecution  of  war 1212 

716.  The  organization  and  disciplining  of  the  militia 1213 

717.  The  militia  as  an  arm  of  the  Federal  Government 1214 

718.  The   use  of   the   militia   and   federal   troops   to    suppress 

domestic    disorder    1215 

719.  Military    government    1217 

720.  Military  government  and  foreign  territory 1217 

721.  Military  government  of   hostile  domestic   territory 1219 

722.  Military  government   of    domestic    territory    in   times   of 

peace 1221 


CHAPTER  LXII. 
Martial  Law.' 

Section  723.  Martial   law   defined 1228 

724.  Martial  law  a  form  of  the  police  power 1229 

725.  Police   power   defined    1231 

726.  Police    power    limited    . 1232 

727.  Martial  law  does   not  abrogate  civil  law  and  civil  guar- 

antees    1234 

728.  Martial  law  and  military  government  distinguished 1236 

729.  Luther  v.  Borden   1236 

730.  Martial  rule  and  war  distinguished 1238 

731.  Powers  of  military  commander  in   cases  of  domestic  dis- 

order   1240 

732.  Martial  law  in  time  of  war 1241 

733.  Exercise    of    military    authority    outside    the    immediate 

theatre  of  war:   Ex  parte  Milligan 1244 

734.  Criticism i 1251 

735.  Mitchell  v.  Clark  considered 1252 

736.  Habeas   corpus    1253 

737.  Suspension  of  the  writ 1254 

738.  Power  of  the  President  to  suspend  the  writ.... 1255 


CHAPTER  LXIII. 
Tiie  Separation  of  Powers. 

Section  739.  The  separation  of  powers 1259 

740.  Separation  of  powers  in  the  State  not  compelled  by  the 

federal  Constitution    1260 


Table  of  Contents.  xxix 

PAGE. 

Section   741.  Powers  separated  in  the  Federal  Government 1261 

742.  Separation   not   complete. 1262 

743.  The  general  principle  stated 1263 

744.  Distinction  between   legislative  and  judicial  acts 1264 

745.  Declaratory  and  retroactive  legislation 1265 

746.  Legislative  control  of  judicial  procedure  and  powers....  1267 

747.  Jurisdiction  and  judicial    power   distinguished 1268 

748.  Powers  of  courts  to  punish  contempts 1270 

749.  Pardoning  power  of  the   President  and  contempts 1270 

750.  Power  of  Congress  to  punish  for  contempts 1272 

751.  The  performance  of  administrative  acts  by  the  courts..  1274 

752.  Judicial  review  of  administraeive  determinations 1276 

753.  Judicial   powers   of   administrative  agents 1277 


CHAPTER  LXIV. 
Conclusiveness  of  Administrative  Determinations. 

Section  754.  Due   process   of   law   does   not   demand    determination  of 

rights  in  courts  of  law 1278 

755.  Fraud   orders    1283 

756.  Chinese    Exclusion    Cases    1286 

757.  The  Ju  Toy  Case 1289 

758.  Constitutional  requirements  of  administrative  determina- 

tions    1291 

759.  Arbitrary  administrative   discretion 1293 

760.  Mandamus 1296 

761.  Ministerial  acts:  Marbury  v.  Madison 1297 

762.  Mandamus  may  not  be  used  in  place  of  an  appeal 1298 

763.  Amenability    of    the    President    to    compulsory    judicial 

process 1300 

764.  Mississippi    v.   Johnson    1301 

765.  Georgia  v.  Stanton 1304 

766.  Head  of  executive  department  acting  for   the  President: 

when  amenable  to  writ 1304 

767.  Obligation  of  the  President   to   enforce  laws  believed  by 

him   to   be   unconstitutional 1306 

768.  Liability  of  the  State  for  acts  of  its  officers 1309 

769.  Legal    liability   of   public   official*   to    private    individuals 

injured  by  their  acts :    ultra  vires  acts   1310 

770.  Mandamus  to  compel  performance  of  commands  by  ad- 

ministrative  superior    1311 

771.  Responsibility  of  officers  for  improper  exercise  of  author- 

ity :  malice,  etc 1312 

772.  Responsibility  of  judges  of  courts  of  superior  and  general 

jurisdiction    1315 


xxx  Table  of  Contents. 

CHAPTER  LXV. 

The  Delegation  of  Legislative  Poweb.  page. 

Section  773.  Delegated  power  may  not  be  delegated 1317 

774.  Local  governing  powers  may  not  be  delegated 1317 

775.  Power  to  issue  administrative  ordinances  may  be  delegated.  1318 

776.  Field  v.  Clark    1319 

777.  Other  illustrative  Cases   1321 

778.  Delegation   of  rate-making   powers 132$ 

779.  The  referendum  as  a  delegation  of  legislative  power 1324 

780.  Administrative  ordinances   1325 

781.  Penal  ordinances  1327 


TABLE   OF   CASES. 


A.  '  PAGE. 

Ableman  v.  Booth,  21  How.  506;   16  L.  ed.  169 84,  123,  130,  141,  1200 

Adair  v.  United  States,  208  U.  S.  161;  28  Sup.  Ct.  Rep.  277;  52  L.  ed. 

436 743,  747 

Adams  v.  New  York,   192  U.   S.  585;   24  Sup.  Ct.  Rep.  372;   48  L.  ed. 

57.1 828,  860 

Adams   Express  Co.  v.  Iowa,  196  U.  S.   147;   25  Sup.   Ct.  Rep.   185;   49 

L.  ed.  424   686,  708 

Adams  Express  Co.  v.  Ohio  State  Auditor,  165  U.   S.   194;   17  Sup.  Ct. 

Rep.  305 :  41  L.  ed.  083 718,  950,  951 

Adams  Express  Co.  v.  Ohio  State  Auditor,  166  U.  S.  185;    17  Sup.  Ct. 

Rep.   604 ;    41  L.  ed.  965 952,  967 

Addyston  Pipe  &.  Steel  Co.  v.  United  States,  175  U.  S.  211;  20  Sup.  Ct. 

Rep.   96;    44  L.   ed.    136 630,  755 

All   Chong,  In  re,  6  Sawyer,  451 502 

Alabama  v.  Burr,  11"  U.  S.  413;  6  Sup.  Ct.  Rep.  81;  29  L.  ed.  435 1056 

Alabama  v.  Georgia.  23  How.  505 ;    16  L.  ed.  556 1043 

AHfidgB  v.   William*.   3  How.  9 :    11  L.  ed.  469 35 

Allen  v.  B.  &  O.  R.  R.  Co.,  114  U.  S.  311;  5  Sup.  Ct.  Rep.  925;  29  L.  ed. 

200 1081,  1083,  1092 

Allen  v.  Riley.  203  U.  S.  347;  27  Sup.  Ct.  Rep.  95;  51  L.  ed.  216.  .  .  .100,  793 

yer  v.  Louisiana,  165  U.  S.  578;  17  Sup.  Ct.  Rep.  427;  41  L.  ed. 

832  N. 872 

Almy  v.  California.  24  How.  169 ;   16  L.  ed.  644 60S 

Ambrosini  v.  United  States,  187  U.  S.  1 ;  23  Sup.  Ct.  Rep.  1 ;  47  L.  ed. 

49 114 

American  Insurance  Co.  v.  Canter,  1  Pet.  511;  7  L.  ed.  242 273,  335,  339 

352,  359.  365,  369,  370,  408 
American  Publishing  Co.  v.  Fisher,  166  U.  S.  464;  17  Sup.  Ct.  Rep.  61S: 

41    L.    ed.    1079 408.  409 

American  Refrigerator  Transit  Co.  v.  Hall,   174  U.  S.  70;    19   Sup.  Ct. 

Rep.   198  :    43  L.  ed.  899 717,  720 

American   School  <>l    Magnetic  Healing  v.  Mc Annuity,  187  U.  S.  94;   23 

Sup.   (  t.  Rep.  33 :   47  L.  ed.  90 1285,  1296 

American  Steel  ft  Wire  Co.  v.  Speed,  192  U.  S.  500;  24  Sup.  Ct.  Rep.  365; 

I.,  ed.  598 713 

American   Siu/ar  Refining  To.   v.  Louisiana.   179  U.   S.   89;   21    Sup.  Ct. 

Rep.   43;    If  L.  ed.    102 596 

-   v.   Kansas,   111    U.  S.  449:   4  Sup.   Ct  Rep.  437;  28  L.  ed.  482..  975 

Auesbury  Nail  Factory  ( v>.  v.  Weed.  17  Mass.  53 931 

Amnion*.   Ex   parte.  ?,4  Ohio   St  518 --*' 

v.   Smith.    1    Litt.    ( Ky.  |    328 266 

Anderson  v.  Baker,  23  Ind.  531 -,; ' 

Anderaon  v.  Dunn.  6  Wb.  204;   S   L  ea\  242 527,  1272 

[xxxi] 


xxxii  Table  of  Cases. 

page. 
Anderson  v.  United  States,  171  U.  S.  (304;  19  Sup.  Ct.  Rep.  50;  43  L. 

ed.   300   755 

Andrews  v.  Andrews,  188  U.  S.  14;  23  Sup.  Ct.  Rep.  237;  47  L.  ed.  366  206 

Andrews  v.  Swartz,  156  U.  S.  272 ;   15  Sup.  Ct.  Rep.  389 ;  39  L.  ed.  422  862 
Anglo-American  Provision  Co.  v.  Davis  Provision  Co.,  191  U.  S.  373;  24 

Sup.  Ct.  Rep.  92 ;   48  L.  ed.  225 203 

Anthony  v.  Holderman,  7  Kans.  50 259,  260 

Antoni   v.   Greenhow,    107   U.   S.   769;    2   Sup.   Ct.   Rep.   91;    27   L.   ed. 

468 1082,  1084 

Appleyard  v.  Massachusetts,  203  U.  S.  222;  27  Sup.  Ct.  Rep.  122;  51 

L.  ed.    161 , 233 

Arbegust   v.   Louisville,   2   Bush,   271 597 

Arlington  Case,  The,  106  U.  S.  196;  1  Sup.  Ct.  Rep.  240;  27  L.  ed.  171.  1080 

Armtage  v.  Attorney  General,  22  T.  L.  R.  306 206 

Arnson  v.  Murphy,  109  U.  S.  238;  3  Sup.  Ct.  Rep.  184;  27  L.  ed.  920..  623 

Arthur  v.  Oakes,  63  Fed.  Rep.  310 855 

Asbell  v.  Kansas,  209  U.  S.  251;  28  Sup.  Ct.  Rep.  485;  52  L.  ed.  778. .  674 

Asher  v.  Texas,  128  U.  S.  129;  9  Sup.  Ct.  Rep.  1 ;  32  L.  ed.  368 70S 

Ashley  v.  Ryan,  153  U.  S.  436;  14  Sup.  Ct.  Rep.  865;  38  L.  ed.  773.  .  728 
Atchison,  etc.,  R.  Co.  v.  Sowers,  213  U.  S.  366;  29  Sup.  Ct.  Rep.  397;  53 

L.  ed.   695 201 

Atherton  v.  Atherton,  181  U.  S.  155;  21  Sup.  Ct.  Rep.  544;   45  L.  ed. 

794 205,  207 

Atlantic  C.  L.  R.  Co.  v.  North  Carolina  Corp.  Com.,  206  U.  S.   1 ;   27 

^        Sup.   Ct.   Rep.  585 ;    51   L.  ed.  933 1323 

Atlantic  &  Pacific  Tel.  Co.  v.  Philadelphia,  190  U.  S.  160;   23  Sup.  Ct. 

Rep.   817;    47   L.   ed.   995 723 

Atlantic  Coast  Line  Ry.  Co.  v.  Wharton,  207  U.  S.  328;   28  Sup.  Ct. 

Rep.  121 ;  52  L.  ed.  230 668 

Auffmordt  v.  Hedden,  137  U.  S.  310;   11   Sup.  Ct.  Rep.   103;   34  L.  ed. 

674 623 

Austin  v.  Tennessee,  179  U.  S.  343;  21  Sup.  Ct.  Rep.  132;  45  L.  ed.  224  647 

Ayers,  In  re,  123  U.  S.  443;  8  Sup.  Ct.  Rep.  164;  31  L.  ed.  216 977,  1070 

1082,  1090 

B. 

B.  &  O.  R.  R.  Co.  v.  Baugh,  149  U.  S.  368;  13  Sup.  Ct.  Rep.  914;  37  L. 

ed.  772    , 1023 

B.  &  S.  R.  R.  v.  Nesbit,  10  How.  395;  13  L.  ed.  469 » . ..  891 

Bacon  v.  Hooker,  177  Mass.  333 965 

Bacon  v.  Howard,  20  How.  22 :  15  L.  ed.  811 199 

Bacon  v.  Texas,  163  U.  S.  207;   16  Sup.  Ct.  Rep.  1023;  41  L.  ed.  132..  916 

Bain's  Case,  121  U.  S.  1 :  7  Sup.  Ct.  Rep.  781 ;  30  L.  ed.  849 977 

Baiz,  Ex  parte,  135  U.  S.  403;   10  Slip.  Ct.  Rep.  854:  34  L.  ed.  222 1007 

Baker  v.  Grice,  169  U.  S.  284;  18  Sup.  Ct.  Rep.  323;  42  L.  ed.  748 130 

Baker  v.  Portland,   5  Sawyer,  566 502 

Bamberger  v.  Terry,   103  U.  S.  40 ;  26  L.  ed.  317 841 

Bank   v.   Cooper,   2   Yerg.   599 624 

Bank  v.  Supervisors.   7  Wall.  26 ;    19  L.  ed.  60 104 


Table  of  Cases.  xxxiii 


PAGE. 

Bank  of  Commerce  v.  Commissioners,  2  Black,  620;   17  L.  ed.  451..  104,     105 
Bank  of  Commerce  v.  Tennessee,  161  U.  S.   134;  16  Sup.  Ct.  Rep.  456; 

40   L.  ed.   645 906 

Bank  of  Kentucky  v.  Adams  Express  Co.,  93  U.  S.  174;  23  L.  ed.  872..  727 

Bank  of  Kentucky  v.  Com.,  4  Bush,  48 107 

Bank  of  Kentucky  v.  Wister,  2  Pet.  318  ;x  7  L.  ed.  437 1073 

Bank  Tax  Case,  2  Wall.  200 ;  17  L,  ed.  793 104,     105 

Bank  of  the  United  States  v.  The  Planters'  Bank  of  Georgia,  9  Wh.  904; 

6    L.   ed.    244 880,  1073 

Bank  of  United  States  v.  Deveaux,  5  Cr.  61 ;  3  L.  ed.  38 985 

Bank  of  Vicksburg  v.  Slocomb,  14  Pet.  60 ;   10  L.  ed.  354 985 

Banks  v.  The  Mayor,  7  Wall.  16 ;   19  L.  ed.  57 104 

Barbier  v.  Connoily,  113  U.  S.  27;  5  Sup.  Ct.  Rep.  357;  28  L.  ed.  923..  882 

888 

Barney  v.  Baltimore  City,  6  Wall.  280;    18  L.  ed.  825 273 

Barron  v.  Baltimore,  7   Pet.  243;   8  L.  ed.  672 70,  877 

Barron  v.  Burnside,   121  U.  S.  186;  7  Sup.  Ct.  Rep.  931;  30  L.  ed.  915  147 
Barrow  SS.  Co.  v.  Kane,  170  U.  S.  100;  18  Sup.  Ct.  Rep.  526;  42  L.  ed. 

964 ' 149 

Bartlett  v.  Kane,  16  How.  263 ;   14  L.  ed.  931 63 

Barto  v.  Himrod,  4  Seld.  483 154 

Bates  v.  Clark,  95  U.  S.  204 ;  24  L.  ed.  471 302 

Bates  &  Guild  Co.  v.  Payne,  194  U.  S.  106;  24  Sup.  Ct.  Rep.  595;  48 

L.  ed.  894 1284,  1299 

Bauman  v.  Ross,  167  U.  S.  548;  17  Sup.  Ct.  Rep.  966;  42  L.  ed.  270.  .  .  928 

931,  933,  942 

Board  v.  Federy,  3  Wall.  478 ;   18  L.  ed.  88 1282 

Beef  Trust  Case,  196  U.  S.  375;  25  Sup.  Ct.  Rep.  276;  49  L.  ed.  518. .. .  75* 

Bein  v.  Heath,   12  How.   168 ;    13  L.  ed.  939 1025,  1026 

Belfast.   The,   7    Wall.   624;    19   L.   ed.   266 1111 

Belknap  v.  Sohild,  161  U.  S.  10;   16  Sup.  Ct.  Rep.  443;  40  L.  ed.  599..  1102 

Bell  v.  Bell,  181  U.  S.  175;  21  Sup.  Ct.  Rep.  551 ;  45  L.  ed.  804 206 

Bells  Gap  Railroad  Co.  v.   Pennsylvania,   134  U.  S.   232;    10  Sup.   Ct. 

Rep.   533 ;    33  L.  ed.   892 595,  625,  888 

Benner  v.  Porter.  9  How.  235 ;  13  L.  ed.  119 369 

Benson  v.  McMahon,  127  U.  S.  457;  8  Sup.  Ct.  Rep.  1240;  32  L.  ed.  234  1288 
Bergemann  v.  Backer,  157  U.  S.  655;  15  Sup.  Ct.  Rep.  727;  39  L.  ed. 

845  868 

Bertram  v.  Robertson,  122  U.  S.  116;  7  Sup.  Ct.  Rep.  1115;  30  L.  ed. 

1118   492 

Billings  v.  Illinois.  188  U.  S.  97;  23  Sup.  Ct.  Rep.  272;  47  L.  ed.  400.  .  600 

Billing*  v.   State,   189   111.  472 599 

Bins  v.  United  States.  104  U.  S.  486;  24  Sup  Ct.  Rep.  816;  48  L.  ed.  1087  439 

Blaek  v.  State,  113  Wis.  205 599 

Blackstone  v.  Miller,   188  U.   S.   189;   23  Sup.  Ct.  Rep.   277;   47  L.  ed. 

439 964,  969 

Blake  v.  McClung,  172  U.  S.  239;   1!)  Sup.  Ct.  Rep.  165;   43  L.  ed.  432  215, 

219 

Blake  v.  McClung,  176  U.  S.  64;   20  Sup.  Ct.  Rep.  307;  44  L.  ed.  371..  221 

iii 


xxxiv  Table  of  Cases. 

page. 

Blanck  v.  Pausch,   113  111.  60 SH 

Board  of  Liquidation  v.  McComb,  92  U.  S.  531;  23  L.  ed.  623.1077,  1080,  1001 

Bodley  v.  Gaither,  3  Monr.  57 12 

Bollman,  Ex  parte,  4  Cr.  75;  2  L.  ed.  554 836,  1031,  1255 

Boln  v.  Nebraska,  176  U.  S.  83;  20  Sup.  Ct.  Rep.  287;  44  L.  ed.  382 241 

Bonaparte  v.  Tax  Court,  104  U.  S.  592 ;  26  L.  ed.  845 204 

Bonham'9  Case,  8  Coke,   115,   118a 867 

Boom  v.  Patterson,  98  U.  S.  403 ;  25  L.  ed.  206 455 

Bowman  v.  Chicago  &  Northwestern  R.  Co.,  125  U.  S.  465;   8  Sup.  Ct. 

Rep.  689;   31   L.  ed.  700 , 643,  645,  659,  661,  678,  680 

Bow-man  v.  Middletown,   1   Bay,  252 42 

Boyd  v.  Alabama,  94  U.  S.  645 ;  24  L.  ed.  302 916 

Boyd  v.  Nebraska,  143  U.  S.  135;  12  Sup.  Ct.  Rep.  375;  36  L.  ed.  103. .  169 

273,  284 

Boyd  v.  Thayer,  143  U.  S.  135;   12  Sup.  Ct.  Rep.  375;  36  L.  ed.  103 444 

Boyd  v.  United  States,   116  U.  S.  66;   6  Sup.  Ct.  Rep.  524;   29  L.  ed. 

746 29,  828,  829 

Boyer,  Ex  parte.  109  U.  S.  629;  3  Sup.  Ct.  Rep.  434;  27  L.  ed.   1056..  1112 

Boyle  v.  Zacharie,  6  Pet.  635 ;   8  L.  ed.  527 ! 1024 

Boynton  v.  Blaine,  139  U.  S.  306;   11  Sup.  Ct.  Rep.  607;  35  L.  ed.  183.  .  12S0 

Bowlin  v.  Commonwealth,  2  Bush,  5 1027 

Braceville  Coal  Co.  v.  People,  147  HI.  66 873 

Bradley  v.  Fisher,  13  Wall.  335;  20  L.  ed.  646 1315 

Bradwell  v.  Illinois,  16  Wall.  130 :  21  L.  ed.  442 886 

Brennan  v.  Titusville,   153  U.  S.  289;   14  Sup.  Ct.  Rep.  829;  38  L.  ed. 

719 705,  706 

Brimmer  v.   Re'cman,   138  U.   S.   78;    11   Sup.   Ct.   Rep.   213;   34  L.   ed. 

862 , 673,  fiS9 

Brine  v.  Hartford  Fire  Ins.  Co.,  90  U.  S.  627;  24  L.  ed.  858 10-29 

Briscoe  v.  Bank  of  Kentucky,  11  Pet.  257;  9  L.  ed.  709 83.  Ill,  879,  1073 

Bristol  v.  Washington  Co.,  177  U.  S.  133;  20  Sup.  Ct.  Rep.  585;  44  L. 

ed.  701   963 

Broadhead  v.  City  of  Milwaukee,  19  Wis.  624 585 

Bronson  v.  Kinzie  et  al.,   1   How.   311;    11   L.   ed.   143 891,  892 

Brooklyn  City,  etc.,  Ey.  Co.  v.  National  Bank,  102  U.  S.   14;  26  L.  ed. 

61   .   .   1037 

Brown  v.  Houston,  114  U.  S.  622;  5  Sup.  Ct.  Rep.  1091:  29  L.  ed. 

257 76,  661,  712,  734,  769,  770,  947 

Brown  v.  Maryland,  12  Wh.  419;  6  L.  ed.  678. .  .608,  618,  634,  642,  644,  653 

701,  711.  768 

Brown  v.  New  Jersoy,  175  U.  S.  172;  20  Sup.  Ct.  Rep.  77;  44  L.  ed.  119  860 

Brown  v.  Smart,  145  U.  S.  454;  12  Sup.  Ct.  Rep.  958;  36  L.  ed.  773.  .. .  777 

Brown  v.  United  States,  8  Cr.  110:   3  L.  ed.  504 798,  1211,  1221 

Brown  v.   Walker,    161   U.    S.   591;    16    Sup.   Ct.    Rep.    644;    40   L.    ed. 

819 825,  826,  827,  1172 

Buck  v.  Beach,  206  U.  S.  392;   27  Sup.  Ct.  Rep.  712;  51  L.  ed.   1106..  905 

Burgess  v.  Pue,  2  Gill.  11 155 

Burgess  v.  Seligman,  107  U.  S.  20;  2  Sup.  Ct.  Rep.  10;  27  L.  ed.  359.  .  922 

1036 


Table  of  Casks.  xxxv 

page. 

Bush  v.  Kentucky,  107  U.  S.  lln:  1  Sup.  Ct.  Rep.  C25;  27  L.  ed.  354..  884 
■■tier  v.  Boston  Steamship  Co.,  130  U.  S.  527;  9  Sup.  Ct.  Rep.  612;  32 

L.    ed.    1017 1117,  1118 

Butler  v.  Corcley.  1-10  U.  S.  303;  13  Sup.  Ct.  Rep.  84;  30  L.  ed.  981.  ..  .  77!* 

Butler  v.   Pennsylvania.   10  How.  402;   13  L.  ed.  472 166,  893 

P.utterworth  v.   United  States,  112  U.  S.  50;  5  Sup.  Ct.  Rep.  25;  28  L. 

ed.  G56 1162 

Buttfield  v.  Stranahan,  192  U.  S.  470;  24  Sup.  Ct.  Rep.  349;  48  L.  ed. 

525 ." 769,   1283,  1321 

Butz  v.  Muscatine,  8  Wall.  575 ;   19  L.  ed.  490 925 


C. 

C,  B.  &  Q.  R.  R.  Co.  v.  Chicago,  166  U.  S.  226;   17  Sup.  Ct.  Rep.  581; 

41  L.  ed.  979 868 

( '..   B.  &  Q.  R.  Co.  v.  Iowa.  94  U.  S.  155 :  24  L.  ed.  94 730,     909 

( '.,   M.  ft  St.  P.  R.  R.  Co.  v.  Ackley.  94  U.  S.  179;   24  L.  ed.  99 900 

('..    M.   &   St.   P.   Ry.   Co.  v.  Minn.,   134  U.  S.   418;    10  Sup.   Ct.   Rep. 

462 ;   33  L.  ed.  970 901 

(  .  ft  O.  Ry.  Co.  v.  Kentucky,  179  U.  S.  388;  21  Sup.  Ct.  Rep.  101;  45 

L.   ed.   244 889 

Catleman  v.  Peoria,  etc.,  R.  R.  Co.,  179  U.  S.  335;  21  Sup.  Ct.  Rep.  171; 

45   L.   ed.  220 OSS 

Calder  v.  Bull.  3  Dall.  386;   1  L.  ed.  648 42,  79,  803,   1200 

<  a  I >!well  v.  North  Carolina,  187  U.  S.  622;  23  Sup.  Ct.  Rep.  229;  47  L. 

ed.  336 687.     706 

California    v.  ( Vntral  Pacific  R.  Co.,  127  U.  S.  1;  8  Sup.  Ct.  Rep.  1073; 

32  L.  ed.  150 ! 90,  111,  763,'    764 

C'allan    v.    Wilson,    127    U.    S.   540;    8    Sup.   Ct.   Rep.    1301:    32   L.  ed. 

223 408,  806,  808,  810,     811 

Calvin'-   Case,   7   Coke.    118b 276 

Campbell   v.  California,  200  U.  S.  87;   26  Sup.  Ct.  Rep.  182;  50  L.  ed. 

388 601 

Campbell  v.  United  States,  107  U.  S.  407;  2  Sup.  Ct.  Rep.  759;  27  L. 

ed.   502    1165 

Ha— i  mi  v.  People,   18  N.  Y.   128 814 

Cannon  v.  Hew  Orleans.  20  Wall.  577:  22  L.  ed.  417 661 

Capftal  Traction  Co.  v.  Hof,  174  U.  S.  1 ;   19  Sup.  Ct.  Rep.  580:   43  L. 

ed.  873    375.  808,     840 

Caldwell  v.   American  River  Bridge  Co.,  113  U.  S.  205;  5  Sup.  Ct.  Rep. 

423  :    28  L.  ed.  059 76,     661 

Carlisle  v.  United  States,  16  Wall.  147;  21  L.  ed.  426 834 

Carter  v.   Com.  of  Va..  M  Va.  701 1269 

Central  Land  Co.  v.  Laidley.  188  U.  S.  103:   16  Sup,  Ct.  Rep.  80  ■   40  L. 

ad.   91    868.     017 

Castillo   v.  McConnico,   168  U.  S.   674:    18  Sup.  Ct.  Rep.  220:   42"  L.  ed. 

ti22 864 

Chae  (ban  Ping  v.  United  States.  130  U.  S.  581  ;  0  Sup.  Ct.  Rep.  623:  32 

L.  ed.    1068    251,  485,  1286 


xxxvi  Table  of  Cases. 

page. 
Champion  v.  Ames,    188  U.   S.   321;   23  Sup.   Ct.   Rep.   321;    47   L.   ed. 

492 633,  638,  735,  736,  766 

Chapman,  Re,  166  U.  S.  661;   17  Sup.  Ct.  Rep.  677;  41  L.  ed.  1154 1272 

Chappell  v.  United  States,  160  U.  S.  499;  16  Sup.  Ct.  Rep.  397;  40  L.  ed. 

510 119 

Charles  River  Bridge  Co.  v.  Warren  Bridge  Co.,   11  Pet.  420;   9  L.  ed. 

x            773 83,  898,  899 

Charming  Betsy,  The,  2  Cr.  64 ;  2  L.  ed.  208 1014 

Cheatham  v.  United  States,  92  U.  S.  85 ;  23  L.  ed.  561 025 

Cheever  v.  Wilson,  9  Wall.  108 ;   19  L.  ed.  604 987,  1067 

Chemung  Canal  Bank  v.  Lowery,  93  U.  S.  72;  23  L.  ed.  806 216 

Cherokee  Nation,  The,  v.  Georgia,  5  Pet.  1 ;  8  L.  ed.  253.  .302,  1000,  1060,  1304 
Cherokee  Nation  v.  Hitchcock,   187  U.  S.   294;   23   Sup:   Ct.   Rep.    115; 

47  L.  ed.  183 3 !  3 

Cherokee  Nation  v.  Southern  Kan.  Ry.  Co.,  135  U.  S.  641;   10  Sup.  Ct. 

Rep.  965;   34  L.  ed.  295 312 

Cherokee  Tobacco  Case,  11  Wall.  616;  20  L.  ed.  227 486,  494.  1011 

Chew  Heong  v.  United  States,  112  U.  S.  536;  5  Sup.  Ct.  Rep.  255;  28 

L.    ed.    770 485,  1287 

Chicago,  B.  &  Q.  R.  Co.  v.  Chicago,  166  U.  S.  226;  17  Sup.  Ct.  Rep.  581; 

41  L.  ed.  979 856,  870 

Chicago,  etc.,  Ry.  Co.  v.  Minn.,  134  U.  S.  418;    10  Sup.  Ct.  Rep.  462; 

33    L.    ed.    970 ' 910 

Chicago,  M.  &  St  P.  R.  Co.  v.  Solan,  169  U.  S.  133;    18  Sup.  Ct.  Rep. 

289;    42   L.   ed.   688 6(>G.  728 

Chicago  &  N.  W.  R.  Co.  v.  Fuller,  17  Wall.  530;  21  L.  ed.  710 666 

Chicago  Theological   Seminary  v.   Illinois,    188   U.   S.   662;    23   Sup.   Ct. 

Rep.    386 ;    47    L.   ed.    641 906 

Chicot  v.  Sherwood,  148  U.  S.  529;   13  Sup.  Ct.  Rep.  695;  37  L.  ed.  546  149 
Chin  Low  v.  United  States,  208  U.  S.  8;  28  Sup.  Ct.  Rep.  201;  52  L.  ed. 

369   253,  1292 

Chinese  Exclusion  Cases,  130  U.  S.  581;  9  Sup.  Ct.  Rep.  623;  32  L.  ed. 

1068    • 452,  4S5 

Chirac  v.  Chirac,  2  Wh.  259,  4  L.  ed.  234 281,  494,  406,  500.  774 

Chisholm  v.   Georgia,   2   Dall.   419:    1   L.   ed.   440 32,  79,  1693 

Chy  Lung  v.  Freeman,  92  U.   S.  275;   23  L.  ed.  550 885 

Cincinnati,  etc.,  Co.  v.  Bay,  200  U.  S.   179;   26  Sup.   Ct.  Rep.  208;   50 

L.   ed.   428 759 

Cincinnati,  P.   B.   S.  &  P.  Packet  Co.   v.   Catlettsburg,   105  U.   S.  559; 

26    L.    ed.    1 661 

Cincinnati,  W.  &  Z.  R.  Co.  v.  Clinton  County  Comrs.,  1  Ohio  St.  88 1320 

City  of  Baltimore  v.  Radecke.  40  Md.  217 ? 1293 

City  Bridge  Proprietors  v.  Hoboken  Land  &.  Improvement  Co.,   1  Wall. 

116;    17  L.  ed.  571 013 

City  of  Covington  v.  Southgate,   15  B.  Monr.  491 507 

City  of  Minneapolis  v.  Reum,  56  Fed.  576 259 

City  of  Panama,  The,  101  U.  S.  453  ;  25  L.  ed.  1061 370 

Civil  Rights  Cases,  109  U.  S.  3;  3  Sup.  Ct.  Rep.  18;  27  L.  ed.  835.  .176.  187 

849,  851 


Table  of  Cases.  xxxvii 

PAGE. 

Claflin  v.  Houseman,  93  U.  S.   130;   23  L.  ed.  833 197,  991 

Clarke,  Ex  parte,  100  U.  S.  399 ;  25  L.  ed.  715 549 

Cleveland,  C,  C.  &  St.  L.  R.  Co.  v.  Backus,  154  U.  S.  439;   14  Sup.  Ct. 

Rep.    1122;    38   L.  ed.    1041 710,   719,  950 

Clinton  Bridge  Case,  1   Woolw.   155;  Fed.  Cas.  No.  2,900 486,  487,  488 

Clinton  Englebrecht,  13  Wall.  434;  20  L.  ed.  659 370,  970 

Clyatt  v.  United  States,  197  U.  S.  207;  25  Sup.  Ct.  Rep.  429;  49  L.  ed. 

726 849 

Coe  v.  Errol,   116  U.  S.  517;  6  Sup.  Ct.  Rep.  475;  29  L.  ed.  715.. 611,  642 

713,  752,  947,  949,  968,  969 

Coffin  v.  Coffin,  4  Mass.   1 531 

Cohen  v.   Virginia,   6   Wh.   264;    5  L.   ed.  527 32,  66,   80,    122,   376,  377 

556,  1046,   1052,   1068,  1070 

Coleman  v.  Tennessee,  97  U.  S.  509;   24  L.  ed.  1118 818,  1200,  1203,  1206 

Collector  v.  Day,  11  Wall.  113;  20  L.  ed.  122 113 

Collet  v.  Collet,  2  Dall.  294;   1  L.  ed.  387 281,  774 

Collins  v.  New  Hampshire,  171  U.  S.  30;  18  Sup.  Ct.  Rep.  768;  43  L.  ed. 

60 695 

Collins  v.  United  States,   14  Ct.  of  Claims,  569 1175 

(  omegya  v.  Va«se.  1  Pet.  193;  7  L.  ed.  108 1279 

Commissioners,   etc.   v.   Covey,   74    Ind.   262 1295 

Commonweal  in  v.  Abrahams,   156  Ma9s.  57 1295 

Commonwealth  v.  Alger,  7  Cush.  53 f 1231 

Commonwealth  v.   Blanding,  3  Peck,   304 1295 

Commonwealth  v.  Brooks,   109  Mass.  355 1295 

Commonwealth  v.  Davis.  140  Mass.  485 1295 

Commonwealth  v.  Roby,  12  Pick.    ( Mass.)  503 818 

Commonwealth  of  Pennsylvania  ex  rel.  Wadsworth  v.  Shortall,  206  Pa. 

•     St.   165 1240 

Compagnie  Francaise,  etc.,  v.  State   Board  of  Health  of  Louisiana,  186 

U.  S.  380;  22  Sup.  Ct.  Rep.  811 ;  46  L.  ed.  1209 676 

Connolly  v.  Union  Sewer  Pipe  Co.,  184  U.  S.  540;  22  Sup.  Ct.  Rep.  431; 

46  L.  ed.   679 761 

Connolly  v.  Union  Sewer  Pipe  Co.,  184  U.  S.  540;  22  Sup.  Ct.  Rep.  431; 

46   L.  ed.   679 888 

Consolidated  Rendering  Co.  v.  Vermont,  207  U.  S.  541;  28  Sup.  Ct.  Rep. 

178 ;    52  L.   ed.    327 826 

Continental  Wall  Paper  Co.  v.  Voight,  212  U.  S.  515;  29  Sup.  Ct.  Rep. 

280:   53  L.  ecf.  480 761 

Conway  v.  Taylor,  1  Black,  603 661 

Cook  v.  Hart,  146  U.  S.  183;   13  Sup.  Ct.  Rep.  40;  46  L.  ed.  934 232 

Cook  v.  Marshall.  190  U.  S.  261  :  25  Sup.  Ct.  Rep.  233;  49  L.  ed.  471 .  .  649 
Cook  v.  United  States,  138  U.  S.   157:    11  Sup.  Ct.  Rep.  268;   34  L.  ed. 

906 410 

Cooley  v.  Philadelphia  Port  Wardens.  12  How.  299;  13  L.  ed.  996.76,  658,  661 

Cooper,  Ex  parte,  143  U.  S.  472:   12  Sup.  Ct.  Rep.  453;  36  L.  ed.  232.  .  370  ± 

1004,  1010 

Cooper,  Ex  parte,  143  U.  S.  472;   12  Sup.  Ct.  Rep.  453;   30  L.  ed.  232..  370 


xxxviii  Table  of  Cases. 


Coosaw  Mining  Co.  v.  S.  Carolina,  144  U.  S.  550;   12  Sup.  Ct.  Rep.  689; 

36  L.  ed.  537 898 

Cope  v.  Vallette  Dry  Dock  Co.,  119  U.  S.  625;  7  Sup.  Ct.  Rep.  336;  30 

L.   ed.    501 1112 

Corfield  v.  Coryell,  4  Wash.  C.  C.  371 179,     213 

Cornelius  v.  Kessel,  128  U.  S.  456;  9  Sup.  Ct.  Rep.  122;  32  L.  ed.  482.  .  1102 
Cornell  v.  Coyne,  192  U.  S.  418;  24  Sup.  Ct.  Rep.  383;  48  L.  ed.  504..  613 
Corry  v.  Baltimore,  196  U.  S.  466;  25  Sup.  Ct.  Rep.  297;  49~X.  ed.  556.  960 
Cosgrove  v.  Winney,  174  U.  S.  64;  19  Sup.  Ct.  Rep.  598;  43  L.  ed.  897.  .  231 
Counselman  v.  Hitchcock,  142  U.  S.  547 ;  12  Sup.  Ct.  Rep.  195 ;  35  L.  ed. 

1110 826 

County  of  Mobile  v.  Kimball.  102  U.  S.  691 ;  26  L.  ed.  238 650 

Covington  &  Cincinnati  Bridge  Co.  v.  Kentucky,  154  U.  S.  204;  14  Sup. 

Ct.  Rep.  1087;  38  L.  ed.  962 660,     730 

Coy,  In  re,  127  U.  S.  731;  8  Sup.  Ct.  Rep.  1263;  32  L.  ed.  274 ....      543 

Craig  v.  Missouri,  4  Pet.  410;  7  L.  ed.  903 82,  878,   10.36 

Crandall  v.  Nevada,  6  Wall.  35;    18  L.  ed.   745 182,     714 

Crandall  v.  State,   10  Conn.  339 260 

Crocker  v.  Shaw,  174  Mass.  266 599 

Cross  v.  Harrison,  16  How.  164;  14  L.  ed.  889 352,  388,  393,     1226 

Crossman  v.  United  States,  182  U.  S.  221;  21  Sup.  St.  Rep.  742;  45  L. 

ed.   1065 440 

Crown  Cork  &  Seal  Co.  v.  Maryland,   187  Md.  687 100 

Crutcher  v.  Kentucky,  141  U.  S.  47;  11  Sup.  Ct.  Rep.  851;  35  L.  ed.  649.     696 

Cummings  v.  Missouri,  4  Wall.  277 ;   18  L.  ed.  356 801 

Cunningham  v.  Macon  &  B.  R.  Co.,  109  U.  S.  446;  3  Sup.  Ct.  Rep.  292; 

27    L.    ed.    992 1081,  1082,   1102 

Curran  v.  Arkansas,  15  How.  304 ;  14  L.  ed.  705 168 

D. 

Daniel  Ball,  The,  10  Wall.  557 ;  19  L.  ed.  999 768,  1110 

Darnell  &  Son  Co.  v.  Memphis,  208  U.  S.  113;  28  Sup.  Ct.  Rep.  247;  52 

L.   ed.    413 705 

Darrington  v.  Bank  of  Alabama,  13  How.  12;   14  L.  ed.  30 880 

Dartmouth  College  v.  Woodward,  4  Wh.   518;   4  L.   ed.   629 45,  82,     337 

858,  893,     897 

Davidson  v.  New  Orleans,  96  U.  S.  97;  24  L.  ed.  616 583,  857,  864,     932 

Davis,  The,  10  Wall.  15 ;    19  L.  ed.  875 1098 

Davis  v.  Bank,  161  U.  S.  27a;   16  Sup.  Ct.  Rep.  502;  40  L..  ed.  700 98 

Davis  v.  Beason,  133  U.  S.  333;  10  Sup.  Ct.  Rep.  299;  33  L.  ed.  637 S42 

Davis  v.  Concordia,  9  How.  280;  13  L.  ed.  138 488 

Davis  v.  Gray.  16  Wall.  203 ;  21  L.  ed.  447 168,  1083 

Davis  v.  Massachusetts,  167  U.  S.  43;   17  Sup.  Ct.  Rep.  731;  42  L.  ed. 

71    1205 

Davis  v.  Richardson,  45  Miss.  503 119 

Debs,  Re,  158  U.  S.  564;  15  Sup.  Ct.  Rep.  900;  39  L.  ed.  1092 46.  90,     760 

791,   809,  1216 
Deckert,  Re,  2  Hughes,  183 ;  Fed.  Cas.  No.  3,728 778 


Table  of  Cases.  xxxix 

PAGE. 

DeGeofroy  v.  Riggs,   133  U.   S.  258;    10  Sup.  Ct.  Rep.  295;   33  L.  ed. 

642 375,  406,  423,  494,  500,     508 

Delameter  v.  South  Dakota,  205  U.  S.  93;  27  Sup.  Ct.  Rep.  447;  51  L. 

ed.    724    690,     696 

Delaware,  L.  &  W.  R.  Co.  v.  Pennsylvania,  198  U.  S.  341;  25  Sup.  Ct. 

Rep.   669;    49  L.  ed.   1077 948,  949,     954 

Delaware  Railroad  Tax,  18  Wall.  206;   21  L.  ed.  888 725 

De  Lima  v.  Bidwell,  182  TJ.  S.  1;  21  Sup.  Ct.  Rep.  743;  45  L.  ed.  1041       04 

361,  384,  392,  396,  442,     611 
Delmas  v.  Merchants'  Mutual  Insurance  Co.,  14  Wall,  661;  20  L.  ed.  757  1038 

Dennick  v.  Central  R.  R.  Co.,  103  U.  S.  11 ;  26  L.  ed.  439 199 

Denny  v.  Bennett,  128  U.  S.  489;  9  Sup.  Ct.  Rep.  134;  32  L.  ed.  491.776,     777 
De  Saussure  v.  Gaillard,  127  U.  S.  216;  8  Sup.  Ct.  Rep.  1053;  32  L.  ed. 

125 979 

Deshois'  Case,  2  Martin  185 272 

Dewey  v.  City  of  Des  Moines,  173  U.  S.  193;   19  Sup.  Ct.  Rep.  379;  43 

L.   ed.    665 944 

Diamond  Match  Co.  v.  Ontonagon,  188  U.  S.  82;  23  Sup.  Ct.  Rep.  266; 

47  L.  ed.  394 713 

Diamond  Rings,  The,  183  U.  S.  176;  22  Sup.  Ct.  Rep.  59;  46  L.  ed.  138,     402 

442 
Dickerman  v^  Northern  Trust  Co.,  176  U.  S.  181;  20  Sup.  Ct.  Rep.  311; 

44    L.    ed.    423 987 

Dietzsch  v.  Huidekoper,  103  U.  S.  494 ;  26  L.  ed.  497 143 

Divina  Pastora,  The,  4  Wh.  52;  4  L.  ed.  512 1006 

Dixon's  Case.  3  Op.  Atty.-Gen.  662  j  4  Op.  Atty.-Gen.  458 1271 

Dobbins  v.   Commissioners,   16  Pet.  435;    10  L.  ed.   1022 102 

Doe  v.  Braden,  10  How.  885 :    14  L.  ed.  1090 495,  1007,  1278 

Dooley  v.  United  States,  182  U.  S.  222;  21  Sup.  Ct.  Rep.  762:  45  L.  ed. 

'  1074 385,  391,  400,   1218,   1226,  1309 

Dooley  v.  United  States,  183  XT.  S.  151;  22  Sup.  Ct.  Rep.  62;  43  L.  ed. 

*  128 -440,     609 

Dorr  v.  United  States,  195  U.  S.  138;  24  Sup.  Ct.  Rep.  808;  49  L.  ed. 

128 437 

Dorsey  v.   Brigham,   177   111.   250 259 

Douglass  v.  County  of  Pike,  101  U.  S.  677 :  25  L.  ed.  968 924 

Dowries    v.   Bidwell,    182   U.    S.    244;    21    Sup.    Ct.   Rep.    770;    45   L.  ed. 

10S8 35.  330,  368,  372,  402,  407,  411,  494,  507,     800 

Downes  v.  United  States,  187  U.  S.  496  j  23  Sup.  Ct.  Rep.  222 ;  47  L.  ed. 

275 607 

Doyle  v.  Continental  Insurance  Co.,  94  U.  S.  535;  24  L.  ed.  148 147 

Draper  v.   United  States,   164   U.   S.  240;    17  Ct.  Rep.   107;   41  L.  ed. 

419 485 

Dred   Scott  v.  Sandford,    19   How.  393;    15   L.   ed.   691 46,  262,  276,     281 

326,  354.  4(1S.  1024 
Dreyer  v.  Illinois.   187  U.  S.  71:  23  Sup.  Ct.  Rep.  28;  47  L  ed.  79....      819 

Duncan,  Tn  re.  130  F.  S.  449:    11   Sup.  Ct  Rep.  573:  35  L.  ed.  21!) 1023 

Duncan  v.  McCall,  139  U.  S.  449;  11  Sup.  (t.  Rep.  573;  35"  L.  ed.  219..     564 


xl  Table  of  Cases. 

page. 

Duncan  v.  Missouri,  152  U.  S.  377;  14  Sup.  Ct.  Rep.  570;  38  L.  ed.  485  804 
Dunlap  v.  United  States,  173  U.  S.  65;  19  Sup.  Ct.  Rep.  319;  43  L.  ed. 

616   34,  1165 

Dynes  v.  Hoover,  20  How.  65;  15  L.  ed.  838 1198 

E. 
East  Central  Eureka  Min.  Co.  v.  Central  Eureka  Min.  Co.,  204  U.  S.  266 ; 

27  Sup.  Ct.  Rep.  258;  51  L.  ed.  476 1029 

Edwards  v.  Kearzey,  96  U.  S.  595 ;   24  L.  ed.  793 776 

Edye  v.   Robertson,   112   U.   S.   580;    5    Sup.   Ct.   Rep.  247;    28   L.   ed. 

798    578 

Eilenbecker  v.  Dist.  Court  of  Plymouth  Co.,  134  U.  S.  31;    10  Sup.  Ct. 

Rep.  424 ;  33  L.  ed.  801 809 

Ekiu  v.  United  States,  142  U.  S.  651;   12  Sup.  Ct.  Rep.  336;  35  L.  ed. 

1146 253,  453,  1180,  1287,  1292 

Ela  v.  Smith,  5  Gray   (Mass.) ,  121 1235 

Elk  v.  Wilkins,  112  U.  S.  94;  5  Sup.  Ct.  Rep.  41 ;  28  L.  ed.  643 276,  307 

Elmendorf  v.  Tyler,  10  Wh.  152;  6  L.  ed.  289 1022 

El  Paso  &  Northeastern  Ry.  Co.  v.  Gutierrez,  215  U.  S.  87 ;  30  Sup.  Ct. 

Rep.  21   743 

Embry  v.  Palmer,  107  U.  S.  3;  2  Sup.  Ct.  Rep.  25;  27  L.  ed.  346 198 

Emert  v.  Missouri,  156  U.  S.  296;   15  Sup.  Ct.  Rep.  367;  39  L.  ed.  430.  .  710 

Erie  Ry.  Co.  v.  State,  31  X.  J.  L.  531 C34 

Escanaba  v.  Lake  Michigan  Transportation  Co.,  107  U.  S.  678;   2  Sup. 

Ct.   Rep.   185;   27  L.  ed.  442 241,  661 

Estate  of  Campbell,  143   Cal.  623 509 

Estate   of   Magnes,   32   Colo.   527 599,  600 

Estate  of  Stanford,  126  Cal.  112 599 

Exchange,  The,  7  Cr.  116 ;  3  L.  ed.  287 244 

Experiment,  The,  8  Wh.  261 ;  5  L.  ed.  612 708 

Eyre  v.  Jacob,   14   Gratt.   422 599 

F. 

Fair,  Re,  100  Fed.  Rep.   149 1310 

Fairbanks  v.  United  States,   181  U.  S.  283;   21   Sup.  Ct.  Rep.  648;   45 

L.   ed.    862 27,  73,  612 

Fairfax  v.  Hunter,  7  Cr.  603 ;  3  L.  ed.  453 496,  500 

Fall  v.  Easton,  30  Sup.  Ct.  Rep.  3 202 

Fallbrook   Irrig.    Dist.    v.   Bradley,    164   U.    S.    112;    17    Sup.    Ct.   Rep. 

56 ;  41  L.  ed.  369 862,  0.']2 

Fama,  The,  5  C.  Rob.  106 398 

Fanning  v.  Gregoire,  16  How.  524 :  14  L.  ed.  1043 804 

Fargo  v.  Hart,  193  U.  S.  490;  24  Sup.  Ct.  Rep.  498;  48  L.  ed.  761 720 

Fauntleroy  v.  Lum,  210  U.  S.  230;  28  Sup.  Ct.  Rep.  641;  52  L.  ed.  1039  202 

Fellows  v.  Blacksmith,  19  How.  366;   15  L.  ed.  684 488 

Ferry  v.  Campbell,  1 10  Iowa,  290 509 

Ficklen  v.  Shelby  Co.,  145  U.  S.  1 ;  12  Sup.  Ct.  Rep.  810;  36  L.  ed.  601  705 


Table  of  Cases.  xli 


PAGE. 

Field  v.  Clark,  143  U.  S.  649;  12  Sup.  Cfc  Rep.  495;  3d  L.  ed.  294 478 

562,  608,  1319 

Fifield  v.   Close,   15   Mich.   505 119 

First  National   Bank  v.  Kentucky,  9  Wall.   353;    19  L.  ed.   701 960 

Fitch  v.   We'cer,   G  Hare,  51 287 

Fitts  v.  McGhee,  172  U.  S.  516;   19  Sup.  Ct.  Rep.  269;  43  L.  ed.  535..     977 

1092 

Flaherty,  Re,   105   Cal.  558 1295 

Fleming  v.  Page,  9  How.  603;   13  L.  ed.  276 335,  339,  381,  387,     392 

Fletcher  v.  Peck,  6  Cr.  87 :  3  L.  ed.  162 42,  79,  293,  897,  1086 

Florida   v.  .Anderson,  91  U.  S.  667 ;  23  L.  ed.  290 1056 

Florida,  v.   Georgia,   1 1    How.   293 :    13   L.  ed.   702 1058 

Florida  v.  Georgia.   1 7  How.  478 ;   15  L.  ed.  181 1043 

Folsom  v.  Township,  159  U.  S.  611;  16  Sup.  Ct.  Rep.  174;  40  L.  ed.  278  925 
Fong  Yue  Ting  v.  United  States,  149  U.  S.  698;   13  Sup.  Ct.  Rep.  1016; 

37  L.  ed.  905 65,  68,  253,  453,  485,  810,  860,  1331 

Fontain  v.  Ravanel,  17  How.  369 ;  15  L.  ed.  80 1012 

Ford  v.  Surget,  97  U.  S.  594 ;  24*  L.  ed.  1018 1242 

Fort  Leavenworth  R.  R.  Cd.   v.  Lowe,  114  U.  S.  525;  5  Sup.  Ct.  Rep. 

995;  29  L.  ed.  264 378,  494,  508 

Foster  v.  Kansas,  112  U.  S.  205;  5  Sup.  Ct.  Rep.  8;  28  L.  ed,  696 169 

Foster  v.  Xeilson,  2  Pet.  253 :   7  L,  ed.  415 483,  486,  1003 

Fox  v.  Ohio,  5  How.  410;   12  L.  ed.  213 781,  782,     816 

Frelinghuysen  v.  Key.  110  U.  8.  63;  3  Sup  Ct.  Rep.  462;  28  L.  ed.  71..    1280 

Fremont  v.  United  States,  17  How.  542 ;   15  L.  ed.  241 1014 

French  v.  Barber  Asphalt  Paving  Co.,  181  U.  S.  324;  21  Sup.  Ct.  Rep. 

625  :    45  L.   ed.   879 856,  937,     942 

French  v.  Hay.  22  Wall.  250 ;  22  L.  ed.  857 144 

French  v.  Taylor.  109  U.  S.  274:  26  Sup.  Ct.  Rep.  76;  50  L.  ed.  189 864 

Frothingham  v.   Shaw.    175   Mass.   59 599 

Furman  v.  Nichol,  8  Wall.  44 ;   19  L.  ed.  370 1084 

G. 

Galveston,  H.  &   S.  A.  R.  R.  Co.  v.  Texas.  210  U.  S.  217;  28  Sup.  Ct.  Rep. 

638 ;  52  L.  ed.  1031 721 

Gardner  v.  Barney,  C,  Wall.  499 ;    IS  L.  ed.  890 «   563 

Garcia  v.  Lee,   12  Pet.  511 ;   9  L.  ed.   1176 484 

Garland.  Kx  parte,  4  Wall.  333;   18  L.  ed.  366 803,  1171 

Garland    v.    Gaines.    73    Conn.    002 , 119 

Garnett,  Ex  parte.  141   U.  S.  1  j   11   Sup.  Ct.  Rep.  840;  35  L.  ed.  631 117 

Gassies  v.  Ballon,  6  Pet.  701 ;   8  L.  ed.  573 261 

Gwr  v.  Connecticut.  161  U.  8.  51!!:   Hi  Sup.  Ct.  Rep.  600;  40  L.  ed.  793     676 

Gelpcke  v.  Dubuque,  1  Wall.  175:   17  L.  ed.  520 10,     923 

Gelsthorpe  v.   Furnell,  20  Mont.   299 599 

Genesee  Chief,  The,   12  How.  443 :   13  L.  ed.  1068 1108 

Georgia  v.  Brailsford.  3  Dall.  1  :   1   L.  ed.  483 79 

Georgia  v.   Brailsford.  2  Hall.  402:    1    L.  ed.  433 1063 

Georgia   P.  &    F.kg.   Co.  v.   Smith.    128   U.   S.    174:    9    Sup.   Ct.   Rep.  47; 

32  L.   ed.   377 910 


xlii  Table  of  Cases. 

PAGE. 

Georgia  v.  Stanton,  6  Wall.  50;   18  L.  ed.  721 1001,  1050,  1304 

Georgia  v.  Tennessee  Copper  Co.,  206  U.  S.  230;  27  Sup.  Ct.  Hep.  618; 

51  L.  ed.   1038 1053,  1054 

Gibbons  v.  Ogden,  9  Wh.  1;  6  L.  ed.  23 28,  56,  82,  629,  632,  651,  661,  670 

735,  745,  770,  846 

Gibbons  v.  United  States,  8  Wall.  269;  19  L.  ed.  453 1309 

Gibson  v.  Mississippi,  162  U.  S.  565 ;   16  Sup.  Ct.  Rep.  904;  40  L.  ed. 

1075  .  .  .  S85 

Giles  v.  Harris,  189  U.  S.  475;  23  Sup.  Ct.  Rep.  639;  47  L.  ed.  909 552 

Giles  v.  Teasley,  193  U.  S.  146;  24  Sup.  Ct.  Rep.  359;  48  L.  ed.  655.  . .  554 

Giozza  v.  Tiernan,  148  U.  S.  657;   13  Sup.  Ct.  Rep.  721;  37  L.  ed.  599..  858 
Gladsen  v.  Minnesota,  166  U.  S.  427;   17  Sup.  Ct.  Rep.  627;  41  L.  ed. 

1064 666 

Glide,  The,  167  U.  S.  606;   17  Sup.  Ct.  Rep.  930;  42  L.  ed.  296 1115 

Gloucester  Ferry  Co.  v.  Pennsylvania,  114  U.  S.   196;   5   Sup.  Ct.  Rep. 

826;   29   L.   ed.    158 650,  725,  745 

Godden  v.  Crump,  8  Leigh,  120 155 

Gold  Washing  &  Water  Co.  v.  Keyes,  96  U.  S.  199;  24  L.  ed.  656 

Goetze  v.  United  States,  182  U.  S.  211;  21  Sup.  Ct.  Rep.  742;  45  L.  ed. 

1065 440 

Gonzales  v.  Williams,  102  U.  S.  1 ;  24  Sup.  Ct.  Rep.  171;  48  L.  ed.  317. .  1291 

Good  v.  Martin.  !  S  U.  8.  90;  24  L.  ed.  341 370 

Gordon  v.  United  States,  2  Wall.  561 ;   17  L.  ed.  921 1275 

Gougar  v.  Timberlake,  148  Ind.  38 259 

Governor  of  Georgia  v.  Madrazo,  1  Pet.  110;  7  L.  ed.  73 107S 

Governor's  Heirs  v.  Robertson,  1 1  Wh.  332 ;   6  L.  ed.  488 283 

Grafton  v.  United  States,  206  U.  S.  333;  27  Sup.  Ct.  Rep.  749;  51  L.  ed. 

1084 817 

Graham  v.  Stucken,  4  Blatchf.  50 975 

Grapeshot,  The,  v.  Wallerstein,  9  Wall.  129;   19  L.  ed.  651 388,  401,  1227 

Great  Southern  Fireproof  Hotel  Co.  v.  Jones,  193  U.  S.  532;  24  Sup.  Ct. 

Rep.  576;  48  L.  ed.  778 925 

Green  v.  Biddle,  8  Wh.   1 ;  5  L.  ed.  547 82,  235,  892,  10S6 

Green  v.  Neal,  6  Pet.  291  ;  8  L.  ed.  402 1028 

Green  Co.  v.  Conness,  109  U.  S.  104;  3  Sup.  Ct.  Rep.  69;  27  L.  ed.  872. .  924 

Greene,  Re,  52  Fed.  Rep.  104 751 

Greene  v.  Briggs,   1   Curt.  311 624 

Grunding  v.  Chicago,  177  U.  S.  183;  20  Sup.  Ct.  Rep.  633;  44  L.  ed.  725.  886 
Gulf,  etc.,  Ry.  Co.  v.  Ellis,  165  U.  S.  150;  17  Sup.  Ct.  Rep.  255;  41  L.  ed. 

Mi 8S6,  8S7 

Guy  v.  Baltimore,  100  U.  S.  434 ;  25  L.  ed.  743 704 

H. 
Haddock  v.  Haddock,  201   U.   S.  562;   26  Sup.  Ct.  Rep.  525;   50  L.  ed. 

867 207,  208 

Hagar  v.  Reclamation  District,  111  U.  S.  701;  4  Sup.  Ct.  Rep.  663;  28 

L.   ed.   569 621,  857,  932 

Hagerty  v.  State,  55  Ohio,  613 599 


Table  of  (asks.  xliii 


PAGE. 

Hagood  v.   Southern,   117    U.    S.   52;    6  Sup.   Ct.  Rep.   608;   29  L.   ed. 

805 1081,  1082 

Hale  v.  Henkel,  201  U.  S.  43;  26  Sup.  Ct.  Rep.  370;  50  L.  ed.  652. .  .826,  s^7 

828,  829 

Hall  v.  De  Cuir,  95  U.  S.  485 ;  24  L.  ed.  547 668 

Hallett  v.  Doe  ex  dem.  Hunt,  7  Ala.  899 398 

Hamilton,  The,  207  U.  S.  398;  28  Sup.  Ct.  Rep.  133;  52  L.  ed.  264.. 1116 

Hammond  Packing  Co.  v.  Arkansas,  212  U.  S.  322;  29  Sup.  Ct.  Rep. 

370;    53  L.  ed.  530 861 

Hanford  v.  Davies,  163  U.  S.  273;   16  Sup.  Ct.  Rep.  1051;  41  L.  ed.  157.  917 
Hanley  v.  Kansas  City  S.  Ry.  Co.,  187  U.  S.  617;  23  Sup.  Ct.  Rep.  214; 

47  L.  ed.   333 732,  733 

Hannibal  &  St.  J.  R.  Co.  v.  Husen,  95  U.  S.  464;  24  L.  ed.  527 675 

Hanover  Xat.  Bnnk  v.  Morses,  186  U.  S.  181;  22  Sup.  Ct.  Rep.  857;  46 

L.    ed.    1113 775,776,777,  778 

Hans  v.  Louisiana,  134  U.  S.  1;  10  Sup.  Ct.  Rep.  504;  33  L.  ed.  842 553 

1060,  1065,  1069,  1074 

Sanson  v.  Vernon,  27  Ga.  28 586 

Harding  v.  Harding,  198  U.  S.  317;  25  Sup.  Ct.  Rep.  679;  49  L.  ed. 

10fi6 209 

Hannaa  v.  Chicago,  147  U.  S.  396;  13  Sup.  Ct.  Rep.  306;  37  L.  ed.  216.  101 

Hartman  v.  Greenhow,   102  U.  S.  672 ;  26  L.  ed.  271 1084 

Havenioyer  v.  Iowa  County.  3  Wall.  294 :   18  L.  ed.  38 925 

Haver  v.  Y.nkvr.  9  Wall.  32;    19  L.  ed.  571 463,  517 

Hawaii  v.   Mankichi,  190  U.  S.   197;   23  Sup.  Ct.  Rep.  787;  47  L.  ed. 

1016 64,  432,  815 

Hauenatein  v.  Lynham,  100  U.  S.  4S3:  25  L.  ed.  628 494,  496,  500 

TIayl.urnV   I  as-.  2   Dall.  409;    1  L.  ed.  436 1274 

Head  v.  Amoskeag  Mfg.  Co.,  113  U.  S.  9;  5  Sup.  Ct.  Rep.  441;  28  L.  ed. 

B8S -rrr 868 

Head  Money  Cases,  112  U.  S.  580;  5  Sup.  Ct.  Rep.  247;  28  L.  ed.  798. .  61 

484,  487,  514,  578 
Henderson  Bridge  Co.  v.  Kentucky,  100  U.  S.  150;  17  Sup.  Ct.  Rep.  532; 

4 1  L.  ed.  953 716 

Heoderwn  v.  Mayor  of  New  York.  92  U.  S.  259;  23  L.  ed.  543.  .664,  714,  8^5 

Hendricks  v.  Gonsalee,  87  Fed.  Rep.  351 1311 

IT.  num.  Ex-  parte,   13  Pet.  230;    10  L.  ed.  138 1182 

Hennen,  Pe,  13  Pet.  225:    10  L.  ed.   136 1186 

Heiinintrton  v.  Georgia,  163  U.  S.  299;  10  Sup.  Ct.  Rep.  1086;  41  L.  ed. 

Ififi 663,  666 

Hepburn  v.  KH/.oy.  2  Cr.  4)5:  2  L.  ed.  332 273,  374,  375,  984,  10(50 

Hepburn  v.  Griswold,  8  Wall.  603;  lit  L.  ed.  513 627,  866,  875 

Heymann  v.  Southern  R.  Co.,  203  U.  S.  270:   27  Sup.  Ct.  Rep.  104;  51 

L.    o,l.    17s 689 

Hibenrfe  Savin--  A    Loan  Sseiet?  v.  San  ffraachta,  800  U.  8.  310 :  26 

Sup.  Ct.  Pop.  265;  50  L.  ed.  495 107 

HickoVs  Brtate    (Vt.),  02  Atl.  Rep.  271 599 

Hlggins  v.  Enffel,  1 10  r.  s.  428:   11  Sup.  Ct.  Pep.  7:11:  35  L.  ed.  470..  794 

High  v.  Coyne.  0:;  F  ■<].  Rep;  450 599 


xliv  Table  of  Cases. 

PAGE. 

Hill  v.  People,  16  Mich.  351 814 

Hilton  v.  Guyot,  159  U.  S.  113;   16  Sup.  Ct.  Rep.  139;  40  L.  ed.  95..  ..  1014 

Hilton  v.  Merritt,  110  U.  S.  97;  3  Sup.  Ct.  Rep.  548;  28  L.  ed.  83 623 

1283,  1288 

Hine  v.  The  City  of  New  Haven,  40  Conn.  478 1295 

Hine  v.  Trevor,  4  Wall.  555;   18  L.  ed.  451 1115 

Hodges  v.  United  States,  203  U.  S.  1;  27  Sup.  Ct.  Rep.  6;  51  L.  ed.  65.  849 

Hoff,  Re,  197  U.  S.  488;  25  Sup.  Ct.  Rep.  506;  49  L.  ed.  848 315 

Hoke  v.  Henderson,  4  Dev.    (N.  C)    15 624 

Holden  v.  Hardy,  169  U.  S.  366;  18  Sup.  Ct  Rep.  383;  42  L.  ed.  780..  8(50 

873 

Hollingsworth  v.  Virginia,  3  Dall.  378;   1  L.  ed.  644 520,  1064 

Holmes  v.  Jennison,  14  Pet.  540 ;   10  L.  ed.  579 224 

Home  of  the  Friendless  v.  Rouse,  8  Wall.  430;   19  L.  ed.  495 906 

Home  Insurance  Co.  v.  Morse,  20  Wall.  445 ;  22  L.  ed.  365 146 

Home  Ins.  Co-  v.  New  York,  134  U.  S.  594;  10  Sup.  Ct.  Rep.  593;  33  L.  ed. 

1025 106,  888 

Home  L.  Insurance  Co.  v.  Dunn,  19  Wall.  214 ;  22  L.  ed.  68 149 

Home  Savings  Bank  v.  Des  Moines,  205  U.  S.  503;  27  Sup.  Ct.  Rep. 

571;    51   L.  ed.  901 104 

Homestead  Treason  Case,  1  Dist.  Rep.  (Pa.)    785 838 

Hooe  v.   Jamieson,   166   U.  S.  395;    17    Sup.  Ct.  Rep.  596;    41   L.   ed. 

1049 375,  984 

Hooper  v.  California,  155  U.  S.  648;    15  Sup.  'Ct.  Rep.  207;   39  L.  ed. 

297 635 

Hopkins  v.  United  States,  171  U.  S.  578;  19  Sup.  Ct.  Rep.  40;  43  L.  ed. 

290 754 

Hopkirk  v.  Bell,  3  Cr.  454 ;  2  L.  ed.  497 500 

Hopt  v.  Utah,  110  U.  S.  574;  4  Sup.  Ct.  Rep.  202;  28  L.  ed.  262....  804 

814,  821 

Hornbuckle  v.  Toombs,  18  Wall.  648 ;  21  L.  ed.  966 370 

Hotel  Co.  v.  Jones,  193  U.  S.  532;  24  Sup.  Ct.  Rep.  576;  48  L.  ed.  778.  926 
Hotema  v.  United  States,  186  U.  S.  413;  22  Sup.  Ct.  Rep.  895;  46  L.  ed. 

1225 819 

Houston  v.  Moore,  5  Wh.  1 ;  5  L.  ed.  19 75,  997,  1215 

Houston,  etc.,  R.  R.  Co.  v.  Mayes,  201  U.  S.  321;  26  Sup.  Ct.  Rep.  491; 

50  L.  ed.  772 664,  665 

Houston,  etc.,  Ry.  Co.  v.  Texas,  177  U.  S.  66;  20  Sup.  Ct.  Rep.  545;  44 

L.   ed.   673 881 

Hovey  v.  Elliott,  167  U.  S.  409;  17  Sup.  Ct.  Rep.  841 ;  42  L.  ed.  220.  .. .  861 
Howard  v.  Illinois  Central  R.  Co.,  207  U.  S.  463 ;  28  Sup.  Ct.  Rep.  141 ; 

52  L.   ed.  297 16,  18,  742 

Hoxie  v.  N.  Y.,  N.  H.  &  H.  Ry.  Co.,  73  Atl.  Rep.  754 744 

Hunt  v.  State,  4  Kan.  60 307 

Huntington  v.  Attrill,  146  U.  S.  657;   13  Sup.  Ct.  Rep.  224;   36  L.  ed. 

1123 916 

Hurtado  v.  California,  110  U.  S.  516;  4  Sup.  Ct.  Rep.  Ill;   28  L.  ed. 

232 859,  860,  866 


Table  of  Cases.  xlv 

PAGE. 

Huse  v.  Glover,  119  U.  S.  543;  7  Sup.  Ct.  Rep.  313;  30  L.  ed.  487 661 

Hyatt  v.  New  York,  188  U.  S.  691;  23  Sup.  Ct.  Rep.  456;   47  L.  ed. 

657 227,  233 

Hyde  v.  Stone,  20  How.  170;   15  L.  ed.  874 149 

Hylton  v.  United  States,  3  Dall.  171 ;  1  L.  ed.  556 582,  614 

I. 

Illinois  C.  R.  Co.  v.  Decatur,  147  U.  S.  190;   13  Sup.  Ct.  Rep.  293;  37 

L.    ed.    132 932 

Illinois  Cent.  R.  Co.  v.  Decatur,  126  111.  92 929 

Illinois  Central  Ry.  Co.  v.  Illinois,  163  U.  S.  142;  16  Sup.  Ct.  Rep.  1096; 

41   L.  ed.    107 , 667 

Illinois  Central  R.  R.  Co.  v.  Illinois,   146  U.  S.  387;    13  Sup.  Ct.  Rep. 

110;    36  L.  ed.   1018 909 

Illinois  C.  R.  Co.  v.  McKendree,  203  U.  S.  514;  27  Sup.  Ct.  Rep.  153; 

51   L.  ed.   298 16 

Indiana  v.  Kentucky,  136  U.  S.  479;   10  Sup.  Ct.  Rep.  1051;  34  L.  ed. 

329 1043 

Inglis  v.  Sailor's  Snug  Harbor,  3  Pet.  99 ;  7  L.  ed.  617 276,  290 

International  Postal  Supply  Co.  v.  Bruce,   194  U.  S.  601;  24  Sup.   Ct. 

Rep.  820;  48  L.  ed.   1134 1102,  1103 

International  Text  Book  Co.  v.  Pugg,  217  U.  S.  91;  30  Sup.  Ct.  Rep.  431  631 
Interstate  Commerce   Commission   v.  Brimson,   154  U.  S.  447;    14   Sup. 

Ct.  Rep.   1125;  38  L.  ed.   1047 18,  747,  1277 

Interstate  Commerce  Com.  v.  B.  &  O.  R.  R.  Co.,  145  U.  S.  263;   12  Sup. 

Ct.  Rep.  844 ;  M  L.  ed.  699 , 727 

Iowa  v.  Illinois,  202  U.  S.  59;  22  Sup.  Ct.  Rep.  571;  50  L.  ed.  934 1044 

Irvine  v.  Marshall,  20  How.  558;   15  L.  ed.  994 989 

J. 

Jack  v.  Kansas,  199  U.  S.  372;  16  Sup.  Ct.  Rep.  73;  50  L.  ed.  234 826 

Jackson,  Ex  parte,  96  U.  S.  727 ;  24  L.  ed.  877 741,  784,  829,  843 

James  v.   Bowman,    190    U.   S.    127;    23  Sup.   Ct.  Rep.  678;   47   L.  ed. 

979 ' 17,  192,  551 

James  v.  United  States,  202  U.  S.  401;  26  Sup.  Ct  Rep.  685;  50  L.  ed. 

1079 371 

Jecker  v.  Montgomery,  13  How.  498;    14  L.  ed.  240 400,  1227 

Jefferson  Branch  Bank  v.  Skelly,  1  Black,  436;   17  L.  ed.  173.. 912,  915,  1086 

Johnson  v.  Browne,  205  U.  S.  309;  27  Sup.  Ct.  Rep.  539;  51  L.  ed.  816.  487 

Johnson  v.  M'Intosli,  8  Wh.  543 ;  5  L.  ed.  681 294 

Johnson  v.  Risk.  137  U.  S.  300;  11  Sup.  Ct.  Rep.  Ill;  34  L.  ed.  683...  979 
Johnson  v.  Southern  Pacific  R.  Co.,  196  U.  S.  1 ;  25  Sup.  Ct.  Rep.  158 ; 

49  L.  ed.   363 745 

Johnson  v.  Towsley,   13  Wall.  72 ;  20  L.  60.  485 1 162 

Jones  v.  Keep,   19   Wis.  376 119 

Jones  v.  Montapue,  104  U.  S.  147;  24  Sup.  Ct.  Rep.  611;  48  L.  e,l.  913.  554 

Jone*  v.  Robbins,  8  Cray,  329 857 

Jones  v.   United  States,   137   U.  S.  202:    11    Sup.  Ct.  Rep.  80;   34  L.  ed. 

691 341,  807,  1005,  1 159 


xlvi  Table  of  Cases. 

page. 

Jones'  Heirs  v.  Perry,  10  Yerg.  59 t>2  4 

Juillard  v.   Greenman,  110  U.   S.  421;   4  Sup.  Ct.  Rep.   122;   28  L.   ed. 

204 454,  G27,  875 

K. 

Kaine,  In  re,  14  How.  103;  14  L.  ed.  345 993 

Kansas  v.  Colorado,  206  U.  S.  46;  27  Sup.  Ct.  Rep.  655;  51  L.  ed. 

956 50,  69,  1050,  1002 

Kansas  v.  Colorado,  185  XL  S.  125;  22  Sup.  Ct  Rep.  552;  46  L.  ed.  838.  1048 

Kansas  Indians,  5  Wall.  737 ;   18  L.  ed.  667 30G 

Kearney,  Ex  parte,  7  Wh.  38 ;  5  L.  ed.  391 1271 

Keene  v.  M'Donough,  8  Pet.  308 ;  8  L.  ed.  955 393 

Keerl  v.  Montana,  213  U.  S.  135;  29  Sup.  Ct.  Rep.  469;  53  L.  ed.  734.  .  819 
Keim  v.  United  States,  177  U.  S.  290;  20  Sup.  Ct.  Rep.  574;  44  L.  ed. 

774 1186 

Keith  v.  Clark,  97  U.  S.  454;  24  L.  ed.  1071 979 

Kelley  v.  Rhoads,  188  U.  S.  1 ;  23  Sup.  Ct.  Rep.  259;  47  L.  ed.  359 713 

Kelly  v.  Pittsburgh,  104  U.  S.  78;  26  L.  ed.  658 931 

Kemmler,  Ex  parte,  130  U.  S.  436;  10  Sup.  Ct.  Rep.  930;  34  L.  ed.  519.  831 

Kendall  v.  Stokes,  3  How.  87 ;  11  L.  ed.  506 1314 

Kendall  v.  United  States,  12  Pet.  524;  9  L.  ed.  1181 141,  1157,  1299,  1304 

Kennard  v.  Louisiana,  92  U.  S.  480 ;  23  L.  ed.  478 168 

Kennett  v.  Chambers,  14  How.  38 ;  14  L.  ed.  316 1006 

Kentucky  v.  Dennison,  24  How.  66:   16  L.  ed.  717... 83,  222,  545,  1056,  1179 

Kentucky  v.  Powers,  201  U.  S.  1 ;  2G  Sup.  Ct.  Rep.  387;  50  L.  ed.  633.  .  997 
Keokuk,  etc.,  Bridge  Co.  v.  Illinois,  175  U.  S.  626 ;  20  Sup.  Ct.  Rep.  205 ; 

44  L.  ed.  299 716 

Keokuk  1ST.  L.  Packet  Co.  v.  Keokuk,  95  U.  S.  80 ;  24  L.  ed.  377 661 

Kepner  v.  United  States,  195  U.  S.  100;  24  Sup.  Ct.  Rep.  797;  49  L.  ed. 

114 439,  818,  820,  822 

Ker  v.  Illinois,  119  U.  S.  436;  7  Sup.  Ct.  Rep.  225;  30  L.  ed.  421.  .230.  232 

Kidd  v.  Alabama,  188  U.  S.  730;  23  Sup.  Ct.  Rep.  401;  47  L.  ed.  669. .  .  909 

Kidd  v.  Pearson,  123  U.  S.  1 ;  9  Sup.  Ct.  Rep.  6;  32  L.  ed.  346 641,  7-V2 

Kilbourn  v.  Thompson,  103  U.  S.  168;  26  L.  ed.  377 527,  530,  1261,  1272 

King  v.  Creery,  1  Maule  &  Selw.  273 532 

King  v.  Mullins,  171  U.  S.  404;  18  Sup.  Ct.  Rep.  925;  43  L.  ed.  214.. .  623 

King  of  Spain  v.  Oliver,  2  Wash.  429 10.15 

Kirtland  v.  Hotchkiss,  100  U.  S.  491 ;  25  L.  ed.  558 634,  962,  963 

Klpin.  In  re,  1  How.  277,  note 777 

Klinger  v.  Missouri,  13  Wall.  257 ;  20  L.  ed.  635 979 

Knight  v.  United  States  Land  Association,  142  U.  S.  161;  12  Sup.  Ct. 

Rep.  258;   35  L.  ed.  974 : 1161 

Knights  Templar  Indemnity  Co.  v.  Jarman,  187  U.  S.  197;  23  Sup.  Ct. 

Rep.  108;  47  L.  ed.  139 fc 16 

Knowlton  v.  Moore,  178  U.  S.  41;  20  Sup.  Ct.  Rep.  747;  44  L.  ed.  969. .  581 

582,  602,  610.  620.  767.  969 

Knox  v.  Lee.  12  Wall.  457;  20  L.  ed.  287 20.  86.  627.  B7S 

Knoxville  Water  Co.  v.  Knoxville,  200  U.  S.  22;  26  Sup.  Ct.  V,oV.  221: 

50  L.  ed.  353 898,  899 


Table  of  Cases.  xlvii 

PAGE. 

Koehersperger  v.  Drake,  167  111.  1 22 600 

Kohl  v.  United  States.  91  U.  S.  367;  23  L.  ed.  449 379,  763 

Kollock.  Ex  parte,  165  U.  S.  526;  17  Sup.  Ct.  Rep.  444;  41  L.  ed.  813..  1330 

Ering  v.  Missouri,  107  U.  S.  221;  2  Sup.  Ct.  Rep.  443;  27  L.  ed.  506..  804 

Kulit)  v.  Fairmont  Coal  Co.,  30  Sup.  Ct.  Rep.  140 1029 

Kull  v.  Kull,  37  Hun   (N.  Y.) ,  476 488 


L. 

La  Abra  Silver  Mining  Co.  v.  United  States,  175  U.  S.  423;  20  Sup.  Ct. 

Rep.   108;    44  L.   ed.  223 485,  571,  1280 

Lake  Shore,  etc..  Ry.  v.  Ohio,  173  U.  S.  285;  19  Sup,  Ct.  Rep.  465;  43 

L.  ed.  702 664,  666,  667,  728 

Lane  County  v.  Oregon,  7  Wall.  71 ;  19  L.  ed.  101 112 

La  Xinfa.  The,  75  Fed.  Rep.  513 1011 

Lan-e.  Ex  parte.  IS  Wall.  163;  21  L.  ed.  872 818,  82! 

Ian/,  v.  Randall,  4  Dill.  425 259,  272 

Laramie  Ob.  v.  Albany  Co..  92  U.  S.  307;  23  L.  ed.  552 895 

Lascelles  v.  Georgia,  148  U.  S.  537;  13  Sup.  Ct,  Rep.  687;  37  L.  ed.  549.  231 
Late  Corporation  of  the  Church  of  Jesus  Christ  v.  United  States,   136 

U.  S.  1:   10  Sup.  Ct.  Rep.  792;  34  L.  ed.  478 68,  361,  367,  368,  408 

Latham  v.  Smith.  45  111.  293 1027 

Lattimer  v.  Poteet,  14  Pet.  4;  10  L.  ed.  328 495,  500,  510 

Lawrent  v.   St  ate.    1    Kans.   313 259 

B  v.  Steele,  152  U.  S.  133;  14  Sup.  Ct.  Rep.  499;  38  L.  ed.  385. .  .  501 

Lefevre  v.  Detroit,  2  Mich.  586 929 

ell  v.  Wa  rren,  2  Black.  599 ;   1 7  L.  ed.  261 923,  1028 

Legal  Tender  Cases,  12  Wall.  457 :  20  L.  ed.  287 68,  452,  454 

Lehigh  Valley  R.  Co.  v.  Pennsylvania,  145  U.  S..192;   12  Sup.  Ct.  Rep. 

806  :  36  L.  ed.  672 733 

Lehigh  Water  Co*  v.  Easton,  121  U.  S.  388;  7  Sup.  Ct.  Rep.  916;   30 

L.  ed.  1059   911 

:Leisy  v.  Hardin,  135  U.  S.  100;  10  Sup.  Ct.  Rep.  681;  34  L.  ed.  128. .  .  .  643 

845,  679 

Leitensdorfer  v.  Webb.  20  How.  170 ;   15  L.  ed.  891 371 .  388 

T.elnnr  v.  Mobile,  127  O.  8.  8405  s  Q"P-  ('*.  R<T>-  13835  32  L-  «*•  311.031,  700 

Lemmon  v.  The  People  of  X.  Y..  20  N.  Y.  607 213 

Loni  Moon  Bing  v.  United  States,  158  U.  S.  538;   15  Sup.  Ct.  Rep.  907: 

39  L.  <-<].  1082 253,  1288,  1331 

Lent  v.  Tillson,  140  U.  S.  316;  11  Sup.  Ct.  Rep.  825:  35  L.  cd.  419.  .  ..  932 
Lewis  v.  United  States,  146  U.  S.  370;   13  Sup.  Ct.  Rep.  130;  36  L.  ed. 

1011  815 

Licences  Cases*   5    Hew.   504;    12  L.  ed.  250 83,  498,  656,  880,  701 

License  Tax  Cas»,  B  Wall.  402:   18  L.  ed.  497 682,  605 

l.inc.ln  (  a  v.   Losing,  183  U.  B.  520;    10  Sup.  Ct.  Rep.  363;  33  L.  ed. 

700 149 

Lindsay  v.  Commissioners.  2  Ray.  38.  61 11 

Litchfield  v.  WWwte*  Co.,  101  U.  S.  773 ;  25  L.  ed.  925 1083 


xlviii  Table  of  Cases. 

page. 
Lithographic  Co.  v.  Sarony,  111  U.  S.  53;  4  Sup.  Ct.  Rep.  279;  28  L.  ed. 

349 26 

Little  v.  Barreme,  2  Cr.  170;  2  L.  ed.  243 1196,  1208 

Little  v.  Gouid,  2  Blatchf.  165 794 

Liverpool  &  L.  L.  &  Fire  Ins.  Co.  v.  Mass.,  10  Wall.  566;  19  L.  ed.  1029.  o34 

Lloyd  v.  New  York,  5  N.  Y.  369 117 

Loan  Association  v.  Topeka,  20  Wall.  655 ;  22  L.  ed.  455 585,  608 

Locke's  Appeal,  72  Pa.  St.  491 1318 

Lockwood  v.  St.  Louis,  24  Mo.  20 928 

Loewe  v.  Lawler,  208  U.  S.  274;  28  Sup.  Ct.  Rep.  301;  52  L.  ed.  488. .  .  759 
Logan  v.  United  States,  144  U.  S.  263;   12  Sup.  Ct.  Rep.  617;   36  L.  ed. 

429 191,  819 

Long  Island  Water  Supply  Co.  v.  Brooklyn,  166  U.  S.  685;   17  Sup.  Ct. 

Rep.  718;  41  L.  ed.  1165 ^...  910 

Los  Angeles  v.  Los  Angeles  City  Water  Co.,  177  U.  S.  558;  20  Sup.~  Ct. 

Rep.  736;  44  L.  ed.  886 910,  924 

Lottawanna,  The,  21  Wall.  558;  22  L.  ed.  654 1015,  1115,  1118 

Loughborough  v.  Blake,  5  Wh.  317 ;  5  L.  ed.  98 334,  372,  408,  426 

Louisiana  v.  Jumel,    107  U.    S.   711;    2  Sup.  Ct.   Rep.   128;   27   L.  ed 

448 1079,  1082 

Louisiana  v.  Mississippi,  202  U.  S.  1 ;  26  Sup.  Ct.  Rep.  408 ;   50  L.  ed. 

913 1044 

Louisiana  v.  New  Orleans,  30  Sup.  Ct.  Rep.  40 896 

Louisiana  v.  Pillsbury,  105  U.  S.  278;  26  L.  ed.  1090 896,  915 

Louisiana  v.  Texas,  176  U.  S.  1 ;  20  Sup.  Ct.  Rep.  251;  44  L.  ed.  347 1044 

Louisiana  Board  of  Liquidation  v.  McComb,  92  U.  S.  531 ;  23  L.  ed.  623.  1083 

Louisville,  C.  &  C.  R.  R.  Co.  v.  Letson,  2  How.  497;   11  L.  ed.  353 985 

Louisville  &  Jeffersonville  Ferry   Co.  v.   Kentucky,   188  U.   S.   385;   23 

Sup.  Ct.  Rep.  463;  47  L.  ed.  513 946,  948,  949,  906 

Louisville  &  Nashville  R.  R.  Co.  v.  Barber  Asphalt  Paving  Co.,  197  U.  S. 

430;  25  Sup.  Ct.  Rep.  466;  49  L.  ed.  819 931,  940,  941 

Louisville  &  Nashville  Ry.  Co.  v.   Central  Stock  Yards  Co.,  212  IT.   S. 

132 ;  29  Sup.  Ct.  Rep.  243 :  53  L.  ed.  441 670 

Louisville  &  N.  R.  Co.  v.  Kentucky,  161  U.  S.  677;  16  Sup.  Ct.  Rep.  714; 

40  L.  ed.  849 666 

Louisville  R.  R.  Co.  v.  Railroad  Com.  of  Tenn.,  19  Fed.  Rep.  679 724 

Londoner  v.  Denver,  210  U.  S.  373;  28  Sup.  Ct.  Rep.  708;  52  L.  ed.  1103.  625 
Lone  Wolf  v.  Hitchcock,  187  U.  S.  553;  23  Sup.  Ct.  Rep.  216;  47  L.  ed. 

299 313 

Loney,  In  re,  134  U.  S.  372;  10  Sup.  Ct.  Rep.  384;  33  L.  ed.  949 139,  527 

Lowell  v.  Boston,  111  Mass.  454 608 

Ludlam  v.  Ludlam,  26  N.  Y.  356 275 

Luke  v.  Lyde,  2  Burr.  883,  887 1036 

\/  Luther  v.  Borden,  7  How.  1 ;  12  L.  ed.  851 158,  1008,  1223,  1237,  1278. 

Luxton  v.  North  River  Bridge  Co.,  153  U.  S!  525;  14  Sup.  Ct.  Rep.  891; 

38  L.  ed.  808 763,  704 

Lynch  v.  Clarke,  1  Sandf.  Ch.  583,  649 275 

Lynde  v.  Lynde,  181  U.  S.  183;  21  Sup.  Ct.  Rep.  555;  45  L.  ed.  810 200 

Lyons  v.  Cunningham,  66  Cal.  42 259 


Table  of  Cases.  xlix 

M.  PAGE. 
McAllister  v.  United  States,  141  U.  S.  174;   11   Sup.  Ct.  Rep.  949;  35 

L.  ed.  693 370 

McArdle,  Ex  parte,  7  Wall.  506 ;  19  L.  ed.  264 19,  976 

McCall  v.  California,  136  U.  S.  104;  10  Sup.  Ct  Rep.  881;  34  L.  ed.  391.  703 

M'Clung  v.  Silliman,  6  VVh.  598 ;  5  L.  ed.  340 141 

McConnihay  v.  Wright,  121  U.  S.  201 ;  7  Sup.  Ct.  Rep.  940;  30  L.  ed. 

932 1025 

McCray  v.  United  States,  195  U.  S.  27;  24  Sup.  Ct.  Rep.  769;  49  L.  ed. 

78 19,  580,  607 

McCready  v.  Virginia,  94  U.  S.  391 ;  24  L.  ed.  248 216,  501 

MeCulloch  v.  Maryland,  4  Wh.  316 ;  4  L.  ed.  579 59,  80,  577 

McCullough  v.  Virginia,  172  U.  S.  102;  19  Sup.  Ct.  Rep.  134;  43  L.  ed. 

182 913,  916,  917,  1089 

McDonald  v.  Massachusetts,   180  U.  S.  311;  21  Sup.  Ct.  Rep.  389;  45 

L.  ed.  542 831 

McDonald  v.  Smalley,  1  Pet.  620;  7  L.  ed.  287 1067 

McElmoyle  v.  Cohen,  13  Pet.  312 ;  10  L.  ed.  177 199 

McGahey  v.  Virginia,   135  U.  S.  662;   10  Sup.  Ct.  Rep.  97T;  34  L.  ed. 

304 913,  915,  108S 

M'llvaine  v.  Coxe,  2  Cr.  280;  2  L.  ed.  279;  4  Cr.  209;  2  L.  ed.  598 290 

McKane  v.   Durston,   153  U.  S.  684;   14  Sup.  Ct.  Rep.  913;   38  L.  ed. 

867 217,  862 

McKean,  Ex  parte,  3  Hughes  (U.  S.) ,  23 226 

McNeill  v.  Southern  Railway  Co.,  202  U.  S.  543;  26  Sup.  Ct.  Rep.  722; 

50  L.  ed.  1142 669,  728 

McNiel,  Ex  parte,  13  Wall.  236 ;  20  L.  ed.  624 661 

McPherson,  In  re,  104  N.  Y.  306 599 

MrPherson  v.  Blacker,  146  U.  S.  1 :   13  Sup.  Ct.  Rep.  3;  36  L.  ed.  869..  1126 

Machine  Co.  v.  Gage,  100  U.  S.  676 ;  25  L.  ed.  754 710 

Macon  v.  Patty,  57  Miss.  378 930 

Magnolia,  The.  20  How.  296;  15  L.  ed.  909 1110 

Magoun  v.  Illinois  Trust  &  Savings  Bank,  170  U.  S.  283;   18  Sup.  Ct. 

Rep.  594;  42  L.  ed.  1037 600,  888 

Magwire  v.  Tyler,  8  Wall.  650 ;  19  L.  ed.  320 979 

Million  v.  Justice,  127  U.  S.  700;  8  Sup.  Ct.  Rep.  1204;  32  L.  ed.  283.228.  232 
Maine  v.  Grand  Trunk  R.  R.  Co.,  142  U.  S.  217;  12  Sup.  Ct  Rep.  121 ;  35 

L.  ed.  994 721,  950 

Manchester  v.  Massachusetts,  139  U.  S.  240;  11  Sup.  Ct.  Rep.  559;  35 

L.   ed.    159 1118 

Manuel  v.  Wulff,  152  U.  S.  505;   14  Sup.  Ct.  Rep.  651;  38  L.  ed.  532..  283 

Marbury  v.  Madison,  1  Cr.   137;  2  L.  ed.  60 2,  974,  999,  1176,  11S2 

1297,  1300 

Marques  v.  Frishie,  101  U.  S.  473 ;  25  L.  ed.  800 1290 

Marshall  v.  Holmes,  141  U.  S.  589;  12  Sup.  Ct.  Rep.  62;  35  L.  ed.  870. .  149 

Marl  in.  Ex   parte,   7  Nev.   140 634 

Martin  v.  B.  &  O.  Rv.,  151  U.  S.  673;   14  Sup.  Ct.  Rep.  533:  38  L.  ed. 

311 986 

iv 


1  Table  of  Cases. 

page. 
Martin  v.  District  of  Columbia,  205  U.  S.  135;  27  Sup.  Ot.  Rep.  440;  51 

L,  ed.  743   940,  941 

Martin  v.  Hunter's  Lessee,  1  Wh.  304;  4  L.  ed.  97 37,  46,  80,  12 1,  125 

144,  992,  1052 

Martin  v.  Mott.   12  Wh.  19 ;   6  L.  ed.  537 1008,  1215,  1288 

Martin  v.  Snowden,  18^  Gratt.  100 803 

Mason,  Ex  parte,  105  U.  S.  096;  26  L.  ed.  1213 1204 

Mason  v.  Missouri,  179  U.  S.  328;  21  Sup.  Ct.  Rep.  125;  45  L.  ed.  214. .  543 
Mass.  v.  Western  U.  Tel.  Co.,  141  U.  S.  40;   11  Sup.  Ct.  Rep.  889;  35 

L.  ed.  628   950 

Mattingly  v.  District  of  Columbia,  97  U.  S.  687;  24  L.  ed.   1098 932 

Mauraa  v.  Insurance  Co.,  6  Wall.  1 ;   18  L.  ed.  836 387,  1219 

Maxwell  v.  Dow,  176  U.  S.  581 ;  20  Sup.  Ct.  Rep.  448;  44  L.  ed.  597.  .34,  184 

Ml 
May  &  Co.  v.  New  Orleans,  178  U.  S.  496;   20  Sup.  Ct.  Rep.  976;  44 

L.   ed.    1165 646 

Mercantile  Nat.  Bank  v.  New  York,  121  U.  S.  138;  7  Sup.  Ct.  Rep.  826; 

30  L.  ed.  895 114 

Mercer  Co.  v.  Cowles,  7  Wall.  118 ;   19  L.  ed.  86 14!) 

Mavnard  v.  Hill,  125  U.  S.  190;  8  Sup.  Ct.  Rep.  723;  31  L.  ed.  654 894 

Medley,  Petitioner,  134  U.  S.  160;  10  Sup.  Ct.  Rep.  384;  33  L.  ed.  835..  804 

M&gs  v.  MeClung,  9  Cr.  11 ;  3  L.  ed.  639 1000 

Merger  Case.  193  U.  S.  197;  24  Sup.  Ct.  Rep.  436;  48  L.  ed.  679. .  .  .19,  7S» 

Meriwether  v.  Garrett,  108  U.  S.  472;  26  L.  ed.  197 575,  1086,  1105 

Merritt  v.  Welsh,  104  U.  S.  694;  26  L.  ed.  896 1326 

Merryman,  Ex  parte,  Campbell's  Reports,  246 68 

Metropolitan  Street  R.  Co.  v.  Tax  Commissioners,  199  U.  S.  1 ;  25  Sup. 

Ct.  Rep.  705 :  50  L.  ed.  65 900 

Miller  v.  Fnited  States,  11  Wall.  268 ;  20  L.  ed.  135 1220 

Milligan.  Ex  parte,  4  Wall.  2 ;  18  L.  ed.  281 1228,  12 45 

Mills,  In  re.  135  I".  S.  263 ;   10  Sup.  Ct.  Rep.  762;  34  L.  ed.  107 077 

Mills  v.  Duryee,  7  Cr.  481 ;  3  L.  ed.  411 IM 

Minnesota  v.  Barber,  136  U.  S.  313;   10  Sup.  Ct.  Rep.  862;  34  L.  ed. 

455 673,  689 

Minor  v.  Happersett,  21  Wall.  162;  22  L.  ed.  627 29,  164,  185.  258,  259 

424,  537,  541,  800 
Minnesota  v.  Hitchcock,  185  U.  S.  373;  22  Sup.  Ct.  Rep.  650:  46  L.  ed. 

954 1058,   1102.  1104 

Minot  v.  Winthrop,  162  Mass.  113 538,  500 

Mississippi  v.  Johnson,  4  Wall.  475;   18  L.  ed.  437 1056,  1058,  1301 

Mississippi  Railroad  Commission  v.  Illinois  Central  R.  Co.,  203  U.   S. 

335 ;  27  Sup.  Ct.  Rep.  90 ;  51  L.  ed.  209 143,  667 

Missouri  v.  Illinois,  180  U.  S.  208;  21  Sup.  Ct.  Rep.  331;    45  L.  ed. 

497 1046,  1092 

Mfssoori  v.  Illinois,  200  U.  S.  496;  26  Sup.  Ct.  Rep.  268;  50  L.  ed.  572.  1053 

Missouri  v.  Iowa.  7  How.  660 ;  12  L.  ed.  861 1043 

Rfssovri   v.  Lewis.   101  II.  S.  22 :   25  L.  ed.  989 888 

Missouri  Pacific  Ry.  v.  Humes,  115  U.  S.  512;  6  Sup.  Ct.  Rep.  110;  29 

L.  ed.  463 858 


Table  of  Cases.  li 

PAGE. 

Missouri  Pacific  Ry.  Co.  v.  Larabee  Flour  Mills  Co.,  211  U.  S.  612;  29 

Sup.  Ct.  Rep.  214;  53  L.  ed.  352 607,  669,  728 

Missouri  Pacific  Ry.  Co.  v.  Maekey,  127  U.  S.  205;  8  Sup.  Ct.  Rep.  1161; 

32   L.  ed.    107 886 

Mitchell  v.  Clark.  110  U.  S.  633;  4  Sup.  Ct.  Rep.  170;  28  L.  ed.  279.1252,  1266 

.Mitchell  v.  Great  Works  Milling  &  Manufacturing  Co.,  2  Story,  648..  35 

Mitchell  v.  Harmony,  13  How.  115;   14  L.  ed.  75 401,  1226,   1227,  1213 

Mobile  Co.  v.  Kimball,  102  U.  S.  691 ;  26  L.  ed.  238 -.  . .  .  .661,  932 

.Mobile  &  Ohio  R.  R.  Co.  v.  Tennessee,  153  U.  S.  486;  14  Sup.  Ct.  Rep. 

968;   38  L.  ed.   793 916 

Mobile  v.  Watson,  116  U.  S.  289;  6  Sup.  Ct.  Rep.  398;  29  L.  ed.  620...  896 
Monongahela  Navigation  Co.  v.  United  States,  148  U.  S.  312;   13  Sup. 

Ct.  Rep.  622;   37  L.  ed.  403 119,  763 

Montague  v.  Lowry.  ]!).']  V.  S.  38;  24  Sup.  Ct.  Rep.  307;  48  L.  ed.  608..  766 

Montello,  The,  20  Wall.  430;  22  L.  ed.  391 1111 

Moore  v.  Illinois,  14  How.  13 ;   14  L.  ed.  306 816,  998 

Moore  v.  Quirk.  105  Mass.  49 119 

Mtore  v.  United  States,  91  U.  S.  270;  23  L.  ed.  346 29 

Koran  v.  New  Orleans,   112  U.  S.  69;   5  Sup.  Ct.  Rep.  38;  28  L.  ed. 

653 101,  700 

Moore  v.  Wilkeeos,  13  Cal.  478 1282 

Morford  v.  linger,  8  Iowa,  82 587,  597 

Morgan's  L.  &  T.  R.,  etc.,  Co.  v.  Louisiana  Board  of  Health,  118  U.  S. 

466  :  6  Sup.  Ct.  Rep.  1114;  30  L.  ed.  237 661,  674 

Morley  v.  Lake  Shore,  etc.,  R.  Co..  140  l*.  S.  162;   13  Sup.  Ct.  Rep.  54; 

36  L.  ed.  925 868 

Morrill  v.  Jones.  100  V.  S.  466;  1  Sup.  Ct.  Rep.  423;  27  L.  ed.  267 1326 

Morris-  Estate,   LIS  X.  C.  259;  50  S.  E.  Rep.  682 599,  600 

Moses  Taylor.  The.  4  Wall.  411;   18  L.  ed.  397 991,  1116 

Mestyfl  v.  Fabrigas.  1    Cowp.   180 401,  1227 

Motes  v.  Unite/  178  U.  S.  458;  20  Sup.  Ct.  Rep.  993;  44  L.  ed. 

1150 192 

Moultrie  v.  Hunt.  23  N.  Y.  394.  396 1014 

Mover  v.  Peabody,  212  T".  S.  78;  29  Sup.  Ct.  Rep.  235;  53  L.  ed.  410..  .  1240 

Mrs.  AJexaader'a  Cotton,  2  Wall.  404;  17  L.  ed.  915. . 387,  1219,  1220 

Mugler  v.  Kansas,  123  U.  S.  623;  8  Sup.  Ct.  Rep.  273;  31  L.  ed.  205.680,  809 
Mtthlker  v.  New  York  A   Harlem  Railroad  Co.,  197  U.  S.  544;  25  Sup. 

Ct    Rep.    522;    49   L.   erl.   872 ...872,  917 

Municipal  Suffrage,  In  re,  160  Mass.  500 ' 1325 

Munn  v.  Illinois.  94  U.  S.  113:   24  L.  ed.  77 730,  909.  1230,  1247,  1323 

Murdock  v.  Ward,  178  U.  S.  139;  20  Sup.  Ct.  Rep.  775;  44  L.  ed.  1009. .  108 

607 

Murphy  v.  rfhaway,  111  V.  S.  16;  5  Sup.  Ct.  Rep.  747;  29  L.  ed.  47.366,  408 

Murray  v.  Charleston,  90  F.  S.  432;  24  L.  ed.  760 907 

Murray  v.  The  Charming  Betsy,  2  Cr.  04 ;  2  L,  ed.  208 290 

Murray  v.  (  hieago  &  X.  W.   By.  Co..  02  Fed.  Rep.  24 727 

Murray  v.  Wilson  Distilling  Co..  213  V.  S.  ]5I  :  29  Sup.  Ct.  Rep.  458...  1095 
MttTl                     <•  V.   Ilobokeii   Land  &   Improvement  Co.,   18  How.  272:   15 

L.   ed.   372 62,  624,  857,  864,   1278,   1279,  1288 


lii  Table  of  Cases. 

N.  PAGE. 
Nashville,  C.  &  St.  L.  R.  Co.  v.  Alabama,  128  U.  S.  96;  9  Sup.  Ct.  Rep. 

28;  32  L.  ed.  352 666 

Nathan  v.  Louisiana,  8  How.  73 ;  12  L.  ed.  992 633 

National  Bank  v.  Commonwealth,  9  Wall.  353 ;  19  L.  ed.  701 98 

National  Bank  v.  County  of  Yankton,  101  U.  S.  129;  25  L.  ed.  1046.  .366,  408 

Neagle,  In  re,  135  U.  S.  1 ;  10  Sup.  Ct.  Rep.  658;  34  L.  ed.  55.  .135,  139,  1152 

Neal  v.  Delaware,  103  U.  S.  370;  26  L.  ed.  567 276,  530,  542,  884,  886 

Neely  v.  Henkel,  180  U.  S.  109;  21  Sup.  Ct.  Rep.  302;  45  L.  ed.  448.384,  1008 

Nelson  v.  Lagow,  12  How.  98 ;   13  L.  ed.  909 979 

Nereide,  The,  9  Cr.  388;  3  L.  ed.  769 10 14 

Neves  v.  Scott,  13  How.  268 ;   14  L.  ed.  140 1025 

Nevitt,  Re,  117  Fed.  Rep.  448 1271 

New  Hampshire  v.  Louisiana,   108  U.  S.  76;   2   Sup.  Ct.  Rep.    176:    27 

L.   ed.   656 1054,  1065,  1067,  1069,  1079 

New  Jersey  Steam  Navigation  Co.  v.  Merchants'  National  Bank,  6  How. 

344;   12  L.  ed.  465 1107 

New  Jersey  v.  New  York,  5  Pet.  284 ;  8  L.  ed.  127 1041 

New  Jersey  v.  Wilson,  7  Cr.  164 ;  3  L.  ed.  303 79,  897,  1086 

Nettleton,  Appeal  of,  56  Atl.  Rep.  565 599 

New  Orleans  v.  New  Orleans  Waterworks  Co.,  142  U.  S.  79 ;  12  Sup.  Ct. 

Rep.   142;   35  L.  ed.  943 895,  896 

New  Orleans  v.  Steamship  Co.,  20  Wall.  387;  22  L.  ed.  354.. 387,  2218,  121 !» 

1271 
New  Orleans  v.  Stempel,  175  U.  S.  309;  20  Sup.  Ct.  Rep.  110;  44  L.  ed. 

174 962 

New  Orleans  v.  United  States,   10  Pet.  662;  9  L.  ed.  573 403 

New  Orleans  v.  Winter,  1  Wh.  91 ;  4  L.  ed.  44 273,  984 

New  Orleans  Waterworks  v.  Louisiana  Sugar  Ref.  Co.,  125  U.  S.  18;  8 

Sup.  Ct.  Rep.  741 ;  31  L.  ed.  607 897,  910 

Newton  v.  Commissioner,  100  U.  S.  548 ;  25  L.  ed.  710 909 

New  York  v.  Compagnie  Generale  Transatlantique,  107  U.  S.  59 ;  2  Sup. 

Ct.  Rep.  87 :   27   L.  ed.   383 800 

New  York  v.  Mite,  11  Pet.  102:  9  L.  ed.  648.  .12,  83.  633.  655.  661.  688,  714 
New  York  v.  N.  Y.  C.  &  H.  R.  R.  Co.,  202  U.  S.  584;  26  Sup.  Ct.  Rep. 

714;  50  L.  ed.  1155 054 

New  York  C.  R.  Co.  v.  Lockwood,  17  Wall.  357;  21  L.  ed.  627 1038 

New  York  Indians,  5  Wall.  761 ;  18  L.  ed.  708 307 

New  York  Life  Ins.  Co.  v.  Craven,  178  U.  S.  389;  20  Sup.  Ct.  Rep.  962; 

44  L.  ed.    1116 635 

New  York,  N.  H.  &  H.  R.  Co.  v.  New  York,  165  U.  S.  628;  17  Sup.  Ct. 

Rep.  418;  41  L.  ed.  483 666 

N.  Y.,  etc.,  Ry.  v.  N.  Y.,  165  U.  S.  628;  17  Sup.  Ct.  Rep.  418;  41  L.  ed. 

S53  666 

N.  Y.,  etc.,  R.  R.  Co.  v.  Pennsylvania,  158  U.  S.  440;  15  Sup.  Ct.  Rep. 

900,  39  L.  ed.  1046 721 

New  York  ex  rel.  Metropolitan  Street  Railway  Co.  v.  Tax  Commis- 
sioners, 199  IT.  S.  1 ;  25  Sup.  Ct.  Rep.  705;  50  L.  ed.  65 906,  968 

Nicol  v.  Ames,  173  U.  S.  509;  19  Sup.  Ct.  Rep.  522;  43  L.  ed.  786.  .  .  .  618 

620.  767 


Table  of  Cases.  liii 

PAGE. 

Nightingale,    Petitioner,    1 1    Pick.    168 1295 

Norfolk  W.  R.  Co.  v.  Sims,  191  U.  S.  441;  24  Sup.  Ct.  Rep.  151;  48  L. 

ed.  254 687,  707 

Northern  Securities  Co.  v.  United  States,  193  U.  S.  197;  24  Sup.  Ct. 

Rep.  436;  48  L.  ed.  679 .19,  756 

Northwestern   Fertilizing  Co.  v.   Hyde  Park,  97  U.   S.  659;    24  L.  ed. 

1036    898,  902 

Northwestern  U.  Packet  Co.  v.  St.  Louis,  100  U.  S.  423;  25  L.  ed.  688  661 
Norton  v.  Shelby  Co.,  118  U.  S.  425;  6  Sup.  Ct.  Rep.  1121;   30  L.  ed. 

178 9 

Norwich,  etc.  v.  Wright,  13  Wall.   104;   20  L.  ed.  585 1118 

Norwood  v.   Baker,   172  U.   S.  269;    19   Sup.  Ct.  Rep.  187;    43  L.  ed. 

443 931,  933,  939,  942 

Nunnemacher   v.    State,    129   Wis.    190 599,  600 


0. 

Oceanic  Steamship  Navigation  Co.  v.  Stranahan,  214  U.  S.  320;  29  Sup. 

Ct.   Rep.   671:   53  L.   ed.   1013 1330 

Ogden  v.  Saunders,  12  Wh.  213;  6  L.  ed.  606 20,  775 

Ohio  Life  Insurance   &  Trust  Co.  v.   Debolt,   16  How.  416;    14  L.  ed. 

997   914,  924 

Ohio  &  Mississippi  R.  R.  Co.  v.  Wheeler,  1  Black,  2S6;   17  L.  ed.  130..  985 

Ohio  R.  R.   Co.  v.  Wheeler,  1   Black,  286;   17  L.  ed.   130 986 

Oleott  v.  The  Supervisors,  16  Wall.  678;  21  L.  ed.  382 1033 

Oliver  v.  Worcester,   102  U.  S.  489 117 

O;  inions  of  Justices.  44   Me.  507 259 

Orchard  v.  Alexander,   157  U.  S.  372;    15  Sup.  Ct.  Rep.  635;   39  L.  ed. 

7:57 HC2 

Oregon   v.   Hitchcock,   202  U.   S.  60;    26  Sup.   Ct.  Rep.   568;    50  L.   ed. 

935    1102,1104 

Oregon  R.  &  Nav.  Co.  v.  Oregonian  R.  Co.  130  U.  S.  1 ;  9  Sup.  Ct,  Rep. 

409 ;   32   L.  ed.   837 898 

Orient  Insurance  Co.   v.   Daggs,  172  U.  S.  557;    19  Sup.  Ct.  Rep.  281; 

43  L.  ed.  552 221,  888 

Osborn  v.   Hank  of  United  States,  9  Wh.  738;  6  L.  ed.  204 986,  988,  1076 

1083,  1099 

f)>l„,rn  v.  Florida.  164  U.  S.  650;  17  Sup.  Ct.  Rep.  214;  41  L.  ed.  586.  .  701 

Osborn  v.  United  States,  91  U.  S.  474;  23  L.  ed.  388 1171 

Osborne  v.  Mobile.   It!  Wall.  47H :   21  L.  ed.  470 700 

Oteiza  y  Cortes  v.  Jacobus,  136  U.  S.  330;   10  Sup.  Ct.  Rep.  1031;  34  L. 

ed.     4C4     1288 

Ouachita  &  M.  II.  Packet  Co.  v.  Aiken,  121  U.  S.  444;  7  Sup.  Ct.  Rep. 

907 ;    30  L.  ed.   976 601 

Owensboro  National  Bank  v.  City  of  O\vensl>oro,  173  U.  S.  664:   19  Sup. 

Ct    Rep.    537 :    43    L.    ed.    850 97,  110 

Ozan  Lumber  Co,  v.  Union  Co.   Nat.  Bank.   148   Feci.  344 101 


liv  Table  of  Cases. 

P.  PAGE. 

Pabst  Brewing  Co.  v.  Crenshaw,  198  U.  S.  17;  25  Sup.  Ct.  Rep.  552;  49 

L.  ed.  925 687 

Pace  v.  Burgess,  92  U.  S.  372 ;  23  L.  ed.  657 612 

Pacific  Insurance  Co.  v.  Soule,  7  Wall.  433;   19  L.  ed.  95 582,  615 

Pacific  Mail  SS.  Co.  v.  Golifl'e,  2  Wall.  450;  17  L.  ed.  805 861 

Pacific  Railroad  Removal  Cases,  115  U.  S.  1 ;   5  Sup.  Ct.  Rep.  1113;  29 

L.    ed.    319 986 

Pacific  Railway  Commission  Case,  32  Fed.  Rep.  241 747 

Packet  Co.  v.  Keokuk,  95  U.  S.  80;  24  L.  ed.  377 5S0 

Packet  Co.  v.  St.  Louis,  100  U.  S.  423;  25  L.  ed.  688 580 

Palmer  v.   Hixon,   74  Me.   447 770 

Palmer  v.  McMahon,   133  U.   S.  600;    10  Sup.  Ct.  Rep.  324;  33  L.  ed. 

772 106 

Paquete  Habana,  The,  175  U.  S.  -677;   20  Sup.  Ct.  Rep.  290;  44  L.  ed. 

320 1017 

ParkersbUrg  &  O.  R.  Transp.  Co.  v.  Parkersfourg,  107  U.  S.  691 ;  2  Sup. 

Ct.  Rep.  732:  27  L.  ed.  584 661 

Parsons  v.  Armor,  3  Pet.  413 ;   7  L.  ed.  724 841 

Parsons  v.  United  States,  167  U.  S.  324;   17  Sup.  Ct.  Rep.  880;  42  L. 

ed.  185  1181,  1186 

Passenger  Cases,  7  How.  283 ;    12  L.  ed.  702 52,  498,  658,  714 

Patapsco  Guano  Co.  v.  Board  of  Agriculture,  171  U.  S.  345;  18  Sup.  Ct. 

Rep.    862 ;    43    L.    ed.    101 673 

Patch  v.  Wabash  Ry.   Co.,  207  IT.  S.  277;   28  Sup.  Ct.  6ep.  80;   52  L. 

ed.  204    988 

Patterson  v.   Colorado,  205  U.  S.  454;  27  Sup.  Ct.  Rep.  556:   51  L.  ed. 

879 844 

Patterson  v.  Kentucky,  97  U.  S.  501 :  24  L.  ed.  1115 100,  702 

Patton  v.  Brady.  184  U.  S.  608;  22  Sup.  Ct.  Rep.  493;  46  L.  ed.  713.  .19,  618 

Paul  v.  Virginia.  S  Wall.   160:   19  L.  ed.  357 213,  218,  634.  696.  60S 

Paulsen  v.  Portland.   149  U.  S.  30;   13  Sup.  Ct.  Rep.  750;  37  L.  ed.  637  032 

Payne  v.  Hook,  7  Wall.  425 :   19  L.  ed.  260 1025 

Pedrick  v.   Bailey,   12  Gray,   161 1295 

Peik  v.  Chicago/etc,  R.  R.  Co.,  94  U.  S.  164;  24  L.  ed.  97. . .  .730,  909,  910 
Pembina  Silver  Mining  Co.  v.  Pennsylvania,  125  U.  S.  181;   8  Sup.  Ct. 

Rep.    737;    31    L.    ed.    650 697,  882 

Pendleton  v.  State,  6  Ark.  509 266 

Penhallow  v.  Doane.  3  Hall.  54 ;   1  L.  ed.  507 79 

Pennoyer  v.  McConnaughy,  140  U.  S.  1;  11  Sup.  Ct.  Rep.  699;  35  L.  cd. 

363 1079,  1082.  1002 

Pennoyer  v.  Neff,  95  U.  S.  714;  24  L.  ed.  565 201,  210,  858 

Pennsylvania  Co.,  In  re,  137  U.  S.  451;  11  Sup.  Ct.  Rep.  141;  34  L.  ed. 

738 996 

Pennsylvania  v.  Baltimore.   1   Vesey,  44 1040 

Pennsylvania  v.  W.  &  B.  Bridge  Co..  18  Wall.  421 :   15  L.  ed.  435 771 

Pennsylvania  v.   Wheeling  &   B.   Bridge   Co.,    13   How.   518;    14   L.   ed. 

249 10o4 

Pensacola  Telegraph  Co.  v.  Western  Union  Telegraph  Co.,  96  U.  S.   1 ; 

24  L.  ed.   708 631,  697,  782 


Table  of  Cases.  ]v 

page. 

People  v.  Antonio,  27  Cal.  404 307 

People  v.  Assessors,  156  N.  Y.  417 1(H) 

People  v.    Brooklyn.  4  X.   Y.  419 932 

People  v.  Carapsgnie  Cenc'rale  Transatlantique,  107  U.  S.  59;  2  Sup.  Ct. 

Rep.   87;    27   L.  ed.  383 672,     714 

People  v.  De  La  Guerra,  40  Cal.  311 200 

People,  The  v.  Gerke.  5  Cal.  381 494 

People  v.  McLeod,   1  Hill,  377 130,     133 

People  v.  Miner,  144  111.  308 819 

People  v.  Oldtown,  88  III.  202 259 

People  v.   Raymond.  34  Cal.  492 034 

People  v.   Robert*.    159  X.   Y.  70 100 

People  v.  Roberts,  154  X.  Y.  101 ;  159  X.  Y.  70 967 

Perry  v.  Haines,  lni  U.  S.  17;  24  Sup.  Ct.  Rep.  8;  48  L.  ed.  73.. 1111,  1112 
Pettibone  v.  Xichols.  203   U.   S.   192;   27   Sup.  Ct.  Rep.   Ill;   51   L.  ed. 

148  226,  230 

Philadelphia  v.  \Y.  I".  Tel.  (  o..  32  C.  C.  A.  246 726 

Philadelphia  Fire  Assn.  v.  New  York,  119  U.  S.  110;  7  Sup.  Ct.  Rep.  108; 

89   L.   ed.   342    634 

Philadelphia  &   R.  R.  Co.  v.  Pennsylvania,  15  Wall.  232;  21  L.  ed.  146  968 

Philadelphia  &  R.  R.  Co.  v.  Pennsylvania.  15  Wall.  2S4 ;  21  L.  ed.  164.  .  968 
Philadelphia  SS.   Co.  v.   Pennsylvania,   122  U.  S.  320;   7  Sup.  Ct.  Rep. 

1118;    30  L.   ed.    1200 721 

Philadelphia  v.  T.  R.  Co.  v.  Stimpson,  14  Pet.  448;  10  L.  ed.  535 1288 

Picquet  v.   Swan,  5  Mason,  35 272 

Pittsburgh.  C.  C.  &   St.  L  R.  Co.  v.  Backus,  154  U.  S.  421;    14  Sup. 

Ct.   Rep.   1114;   38  L.  ed.    1031 862,  950 

Pleasant  Township  v.  Aetna  Life  Insurance  Co.,  138  U.  S.  67;  11  Sup. 

Ct.   Rep.   215:   34  L.  ed.   884 925 

Plessy  v.   Ferguson,   163  U.  S.  537;    16   Sup.  Ct.  Rep.   1138;   41   L.  ed. 

256 852,  889 

Plumber  v.  Coler,  178  U.  S.  115;  20  Sup.  Ct.  Rep.  829;  44  L.  ed.  998..  108 

606,  888 
Phunley  v.  Massachusetts,  155  U.  S.  401;   15  Sup.  Ct.  Rep.   154;  39  L. 

ed.   223    694 

Poiadexter  v.  Greenhow,  114  U.  S.  270;  5  Sup.  Ct.  Rep.  903;  29  L.  ed. 

155 880,  1081,  1083,  1085,  1092 

Polk's  Lessee  v.  Wendell,  5  Wh.  293 ;  5  L.  ed.  92 1023 

Pollard  v.  Kibbe,  14  Pel.  :!.-):!:   10  L.  ed.  490 398 

Pollard's  Lessee  v.   Bagan,  :?  How.  212;  11  L.  ed.  565 241,  493 

Pollock  v.  BridpeiHirt  S.  B.  Co.,  114  I'.  S.  411:  5  Sup.  Ct.  Rep.  881;  29 

L.  ed.  147 117a 

Pollock   v.    Fanners-   Loan   A    Trust   Co.,    157    U.    S.   429;    15    Sup.    Ct. 

Rep.    073 :    39    L.    ed.    759 107,  114,  613 

Pollock  v.  Farmer's  Loan  ft  Trust  Co.,  158  U.  S.  601;   15  Sup.  Ct.  Rep. 

912:    39    L.    ed.    1108 602,   619.  767 

Pollock    v.    Farmers'    Loan    ft    Trust    Co..    157    U.    S.    429;    15    Sup.    Ct. 

Rep.   673:    39   L.   ed.    759.   and    15*    V.    S.   601;    15   Sup.   Ct.   Rep. 

912;    39    L.   ed.    1108 616 


lvi  Table  of  Cases. 

page. 
Pope  v.  Williams,  193  U.  S.  621;  24  Sup.  Ct  Rep.  573;  48  L.  ed.  817. .     539 

Poole  v.  Fleeger,  11  Pet.  185;  9  L.  ed.  680 235 

Post  v.  Supervisors,  105  U.  S.  667 ;  26  L.  ed.  1204 1023 

Postal  Telegraph  Cable  Co.  v.  Adams,  155  U.  S.  688;  15  Sup.  Ct.  Rep. 

268;  39  L.  ed.  311 697,  702,  715,     723 

Potter  v.  National  Bank,  102  U.  S.  163;  26  L.  ed.  111. . . 1027 

Pound  v.  Turck,  95  U.  S.  459;  24  L.  ed.  525 661 

Powell  v.  Pennsylvania,  127  U.  S.  678;  8  Sup.  Ct.  Rep.  992;  32  L.  ed. 

253    23,     694 

Prentiss  v.  Brennan,  2  Blatchf.  162 260,     272 

Presser  v.  Illinois,  116  U.  S.  252;  6  Sup.  Ct  Rep.  580;  29  L.  ed.  615..     843 

Prevost  v.  Greenaux,  19  How.  1 ;   15  L.  ed.  572 497 

Price  v.  Abbott,   17  Fed.  Rep.  506 '. 1180 

Prigg  v.  Pennsylvania,  16  Pet.  539;   10  L.  ed.  1060 32,  83,  145,  234,     993 

Prize  Cases,  2  Black,  635;  17  L.  ed.  459 387,  796,  1208,  1219,  1220 

Protector,  The,  12  Wall.  700;   20  L.  ed.  463 1209 

Providence  Bk.  v.  Billings,  4  Pet.  514;  7  L.  ed.  939 1086 

Providence  &  N.  Y.  SS.  Co.  v.  Hill  Mfg.  Co.,  109  U.  S.  578;  3  Sup.  Ct. 

Rep.  379;   27  L.  ed.   1038 1118 

Provident  Institution  v.  Massachusetts,  6  Wall.  611;   18  L.  ed.  907 106 

Public  Clearing  House  v.  Coyne,  194  U.  S.  497;  24  Sup.  Ct.  Rep.  789; 

48  L.  ed.  1092 63,  1283,  1202 

Pullen  v.  Commissioners  of  Wake  Co.,  66  N.  C.  361 599 

Pullman  Co.  v.  Adams,  189  U.  S,  420;  23  Sup.  Ct.  Rep.  494;  47  L.  ed. 

477 701 

Pullman  Co.  v.  Kansas,  216  U.  S.  54;  30  Sup.  Ct.  Rep.  232 221,  701,     725 

Pullman  Palace  Car  Co.  v.  Pennsylvania,  141  U.  S.  18;  11  Sup.  Ct.  Rep. 

876;  35  L.  ed.  613 717,  719,  950,  951,     954 

Pulman  Co.  v.  Kansas,  216  U.  S.  56 ;  30  Sup.  Ct.  Rep.  232 958 

<?• 

Queen  v.  Hertford  College,  3  Q.  B.  D.  693 35 

Quincy  v.  Kennard,   151  Mass.  563 1295 

R. 

Radich  v.  Hutchins,  95  U.  S.  210:  24  L.  ed.  409 834 

Rahrer,  In  re.  140  U.  S.  545;  11  Sup.  Ct.  Rep.  865;  35  L.  ed.  572..  110,  682 

Railroad  v.  Maryland,  21  Wall.  456 ;  22  L.  ed.  678 724 

R.  R.  Co.  v.  Board  of  Supervisors,  93  U.  S.  595;  23  L.  ed.  814 899 

Railroad  Co.  v.  Georgia.  98  U.  S.  359;  25  L.  ed.  185 1023 

Railroad  Co.  v.  Husen,  95  U.  S.  465;   24  L.  ed.  527 031,  674 

Railroad  Tax  Cases,  92  U.  S.  575 ;   23  L.  ed.  663 625 

R.  R.  Telegraphers  v.  Louisiana  &  X.  Ry.  Co.,  148  Fed.  Rep.  437 747 

Railway  Commission  Cases,  116  U.  S.  307;  6  Sup.  €t.  Rep.  334;  29  L. 

ed.    636   901 

Ralls  Co.  v.  United  States,  105  U.  S.  733;  26  L.  ed.  1220 896 

Rapier,  Ex  parte,  143  U.  S.  110;  12  Sup.  Ct.  Rep.  374;  36  L.  ed.  93 111 

788,  843 


Table  of  Cases.  lvii 

PAGE. 

Rasmuasen  v.  Idaho,  181  U.  S.  198;  21  Sup.  Ct.  Rep.  594;  45  L.  ed.  820  675 
Rassmussen  v.  United  States,  197  U.  S.  516;  25  Sup.  Ct.  Rep.  514;  49 

L.   ed.    862 438 

Raymond  v.  Thomas,  91   U.  S.  712;   23  L.  ed.  434 401,  1225 

Reagan  v.  Trust  Co.,  154  U.  S.  418;  14  Sup.  Ct.  Rep.  1062;  38  L.  ed.  1030  731 
Reagan  v.  Farmers'  Loan  &  Trust  Co.,  154  U.  S.  362;  14  Sup.  Ct.  Rep. 

1047 ;  38  L.  ed.   1014 1091,  1002 

Reagan  v.  United  States,  182  U.  S.  419;  21  Sup.  Ct.  Rep.  842;  45  L. 

ed.     1162     1184 

Rearick  v.  Pennsylvania,  203  U.  S.  507;  27  Sup.  Ct.  Rep.  159;  51  L.  ed. 

295    70S 

Rector  of  Christ  Church  v.  Philadelphia  Co.,  24  How.  300;  16  L.  ed,  602  899 

Reed,  Ex  parte.  100  U.  S.  13 ;  25  L.  ed.  538 1330 

Rees  v.  Watertown,   10  Wall.  107 :  22  L.  ed.  72 1068,  1105 

Reetz  v.  Michigan,    188  U.   S.  505;    23  Sup.   Ct.   Rep.  390;   47  L,  ed. 

563    862,  864 

Reggel,  Ex  parte,  114  I*.  S.  042:   :>  Sup.  Ct.  Rep.  1148;  29  L.  ed.  250..  226 

Reid  v.  Colorado,  187  U.  S.  137;  23  Sup.  Ct.  Rep.  92;  47  L.  ed.  108 675 

Reilly  v.  Lamar,  2  Cr.  344 :  2  L.  ed.  300 273 

Re  Lockwood,  154  U.  S.  116;  14  Sup.  Ct.  Rep.  1082;  38  L.  ed.  929 886 

Respublica  v.  De  Longchamps.  1  Dall.  Ill  :   1  L.  ed.  59 1014 

Respublica  v.  Oswald,   1   Dall.  319 844 

Reynolds  v.  United  States,  98  U.  S.  145:  25  L.  ed.  244 370,  408,  410,  841 

Rhode  Island  v.  Massachusetts,  12  Pet.  657;  9  L.  ed.  1233 1040,  1041,  1050 

Rhodes  v.  Iowa,  170  U.  S.  412;  18  Sup.  Ct.  Rep.  664;  42  L.  ed.  1088. .  .  684 

Rice  v.  Foster,  4  Harr.  479 154,  155 

Richmond  &  A.  R.  Co.  v.  R.  A.  Patterson  Tobacco  Co.,  169  U.  S.  311;  18 

Sup.  Ct.  Rep.  335  :   42  L.  ed.  759 667 

Riverside  Oil  Co.  v.  Hitchcock,  190  U.  S.  316;  29  Sup.  Ct.  Rep.  698;  47 

L.     ed.     1074 1299 

Roach   v.  Riswick,   Mc Arthur  &  Mackay,   171 376 

Robbins  v.  Taxing  District  of  Shelby  Co.,  120  U.  S.  489;  7  Sup.  Ct.  Rep. 

592 ;    30  L.  ed.    604 643,  663,  705 

Robert  W.  Parsons,  The,  191  U.  S.  17;  24  Sup.  Ct.  Rep.  8;  48  L.  ed. 

73  1112 

Roberts  v.  ReiUy.  110  U.  S.  80:  6  Sup.  Ct.  Rep.  201 ;  29  L.  ed.  544.  .277,  233 
Robertson  v.  Baldwin,  165  U.  S.  275;   17  Sup.  Ct.  Rep.  326;  41  L.  ed. 

715 : 853,  998,  1052 

Robinson,  Ex  parte.   10  Wall.  51:?:   22  L.  ed.   205 809 

Robinson.   Ex  parte.  0  McLean.  355 1270 

Robinson  v.  Campbell,  3  Wh.  212;   4  L. .  ed.  372 1025,  1026 

Rodd  v.  Heart.  21   Wall.  558;  22  L.  ed.  654 1015 

Ropes  v.  Clinch,  8  Rlatchf.  304  ;   Fed.  CMC  Ufa   12,041 487 

Rose  v.  Himely.  4  Cr.  241  :   2  L.  ed.  608 1006 

Ross.  In  re.  140  U.  S.  453:  11  Sup.  Ct.  Rep.  897;  35  L.  ed.  581 409 

Rowan  v.  Runnels,  5  How.  134 :   12  L.  ed.  80 915.  022 

Royall.  Ex  parte.  117  U.  8.  241:  0  Sup.  Ct  Rep.  784;  20  L.  ed.  808..  136 
Runkle  v.  United  State*.  122  U.  S.  543:   7  Sup.  Ct.  Rep.  1141;   30  L.  ed. 

1167   1160 


lviii  Table  of  Cases. 

page. 

Russell  v.  Southard,  12  How.  139 ;  13  L.  ed.  927 1023 

Ryder  v.  Holt,  128  U.  S.  525;  9  Sup.  Ct.  Rep.  145;  32  L.  ed.  529 794 

S. 

St.  Clair  County  Turnpike  Co.  v.  Illinois,  96  U.  S.  63;  24  L.  ed.  651..  SOS 

St.  Lawrence,  The,  1   Black,  522 ;   17  L.  ed.  180 1118 

St.  Louis,  etc.,  Co.  v.  Mathews,  165  U.  S.   1;   17  Sup.  Ct.  Rep.  243;   41 

L.    ed.    611     8S6 

St.  Louis,  Iron  Mountain  &  Southern  Ry.  Co.  v.  Taylor,  210  U,  S.  281; 

28  Sup.  Ct.  Rep.  616 ;  52  L.  ed.   1061 744,  1322 

St.  Loui6  &  San  Francisco  Ry.   v.  James,   161  U.   S.  545;    16  Sup.   C  t. 

Rep.  621 ;   40  L.   ed.   802 986 

St.  Paul  Gaslight   Co.   v.   St.   Paul,   181  U.   S.   142;    21   Sup.   Ct.   Rep. 

575;   45  L.  ed.  788 807 

Sanborn,  Re,  148  U.  S.  222;   13  Sup.  Ct.  Rep.  577;   37  L,  ed.  429 1275 

Sands  v.  Manistee  River  Imp.  Co.,  123  U.  S.  288;  8  Sup.  Ct.  Rep.  113: 

31   L.   ed.   149 241 

Santa  Clara  v.  S.  Pacific  R.  R.  Co.,  18  Fed.  Rep.  385 6tt 

Santiago  v.  Nogueras,  214  U.  S.  260;   29"  Sup.  Ct.  Rep.  608;   53  L.  ed. 

989 1224 

Santissima  Trinidad,  The.  7  Wh.  283;  5  L.  ed.  454 290,  1006 

Santo  v.  Iowa,  2  Iowa,   165 1 325 

Sapphire,  The,  11  Wall.  164;  20  L.  ed.   127 1055 

Sattc  rlee  v.  Mattliewson,  2  Pet.  380 :  7  L.  ed.  458 891 

Sauer  v.  City  of  New  York,  206  U.  S.  536;  27  Sup.  Ct.  Rep.  686;  51  L. 

ed.    1176 919 

Savings  &  Loan  Society  v.  Multnomah  Co.,  169  U.  S.  421:   18  Sup.  Ct. 

Rep.  392;   42  L.  ed.  803 960,  963 

Sawyer  v.   Concordia.   12   Fed.  754 898 

Sawyer  v.  Davis,   136   Mass.  239 1295 

Sayl.s  v.  Davis.  22  Wis.  225 119 

Schick  v.  United  States,  195  U.  S.  65;  24  Sup.  Ct.  Rep.  826;  49  L.  ed. 

99 814 

Scholey  v.  Rew,  23  Wall.  331 ;  23  L.  ed.  99 615,  620 

Schollenberger  v.  Pennsylvania,  171  U.  S.  1 ;   18  Sup.  Ct.  Rep.  757;  43 

L.    ed.    49 645,  695 

Scotland.  Tin-.  105  U.  S.  24;  26  L.  ed.  1(01 11  IS 

Scott  v.  Donald,  165  U.  S.  58;    17  Sup.  Ct.  Rep.  265;  41  L.  ed.   032..  673 

084,  1083,  1092 

Scott  v.  Jones,  5  How.  343 :    12  L.  ed.   1S1 322 

Scott  v.  McXoal.  154  U.  S.  34;    14  Sup.  Ct.  Rep.  1108;  38  L.  ed.  896..  80S 

Sears  v.  The  Scotia.   14  Wall.   170;   20  L.  ed.   822 1014,  1019 

Security  Mutual  Life  Insurance  Co.  v.  Prewitt.  202  U.  S.  246 ;   26  Sup. 

Ct.    Rep.    619 ;    50   L.    ed.    1013 147.  699 

Peibert  v.  Lewis.  122  I*.  S.  284:  7  Sup.  Ct.  Rep.  1190;  30  L.  ed.  1161..  896 

Sere  v.  .Pitot.  S  Or.  332:  3  L.  ed.  240 351,  359,  365 

Shanks  v.  Dupont.  3  Pet.  242 :  7  L.  ed.  666 290 

Sharp  v.  State,  49  S.  W.   Rep.  752 1271 


Table  of  Cases.  lix 

PAGE. 

Sharpless   v.  Mayor,  21    Pa.   St.    147 586 

Shawnee  Compress  Co.  v.  Anderson,  209  U.  S.  423;  28  Sup.  Ct.  Rep. 

572;   52   L.  ed.   8G5 761 

Sheffield  Furnace  Co.  v.  Witherow,  149  U.  S.  574;  13  Sup.  Ct.  Rep.  936; 

37    L.    ed.    853 1026 

Shelby  County  v.  Guy,  11  Wh.  361 ;  6  L.  ed.  495 1022,  1029 

Sheppard  v.  Taylor,  5  Pet.  675 ;  8  L.  ed.  269 1280 

Sherlock  v.  Ailing,  93   U.  S.  99;    23  L.  ed.   819 728,  745.  1114 

Shively  v.  Bowlby,  152  U.  S.  1;  14  Sup.  Ct.  Rep.  548;  38  L.  ed.  331.241,  335 
Shoemaker  v.  United  States,  147  U.  S.  282;  13  Sup.  Ct.  Rep.  361;  37  L. 

ed.    170    932,  1179 

Siebold,  Ex  parte,  100  IT.  S.  371;   25  L.  ed.  717 90,  149,  545,  1154 

Shoshone  Mining  Co.  v.  Rutter,  177  U.  S.  505;  20  Sup.  Ct.  Rep.  726; 

44  L.   ed.   864 989 

Shurtleff  v.  United  States,  189  U.  S.  311;  23  Sup.  Ct.  Rep.  535;  47  L. 

ed.    828     1184 

Sinking  Fund  Cases,  00  U.  S.  700;  25  L.  ed.  496 20,  876,  1264 

Siren.  The  v.  United  States,  7  Wall.  152 ;  19  L.  ed.  129 1096 

Slater  v.  National  R.  R.  Co.,  194  U.  S.  120;  24  Sup.  Ct.  Rep.  581;  48 

L.    ed.    900    200 

Slaughter  House  Cases.  16  Wall.  36;  21  L.  ed.  394.  .177,  276,  850,  851,  854 
Smelting,  etc..  Co.  v.  Colorado,  204  U.  S.  103;  27  Sup.  Ct.  Rep.  198;  51 

L.   ed.   393 895 

Smelting  Co.  v.  Kemp,   104  U.  S.  636;   26  L.  ed.  875 63,  1280 

Smith  v.  Alabama,  124  U.  S.  465;  8  Sup.  Ct.  Rep.  564;  31  L.  ed.  508. .  29 

666,  1037 

Smith  v.   Moody,   26   Ind.   299 259 

Smith  v.    Reeves,    178    U.    S.   436;    20    Sup.   Ct   Rep.   919;    44  L.   ed. 

1140 1069,  1083 

Smith  v.  St.  Louis,  etc.,  Ry.  Co.,  181  U.  S.  248;  21  Sup.  Ct.  Rep.  603; 

45  L.    ed.    o47 675 

Smith  v.  United  States,   1  Wash.  Ter.  269 1060 

Smith  v.  Whitney,  116  U.  S.  167;  6  Sup.  a.  Rep.  570;  29  L.  ed.  601..  1208 

1330 

Smyth  v.  Ames,  169  U..  S.  466;   18  Sup.  Ct.  Rep.  418;  42  L.  ed.  819..  149 

731,  732,  874,  1092 

Snow  v.  United  States,  18  Wall.  317 :  21  L.  ed.  784 365 

Snyder  v.  Bettman,  100  U.  BL  240;  S3  Sup.  Ct.  Rep.  803;  47  L.  ed.  1035.  606 

Society  for  Saving   v.  Coite,   6  Wail.   007;    18  L.   ed.  903 106,  967 

Soon  Hing  v.  Crowley,  113  U.  S.  703;  5  Sup.  Ct.  Rep.  730;  28  L.  ed. 

1145 ' 886 

South  Carolina  v.  Georgia,  03  XT.  S.  4;  23  L.  ed.  782 1043 

South  Carolina  v.  United  States,  199  U.  S.  437;  26  Sup.  Ct.  Rep.  110; 

50  L.  ed.   261 28,  46,  619,  1095 

South  Dakota  v.  North  Carolina,  192  U.  S.  286;  24  Sup.  Ct.  Rep.  269; 

48    L.    ed.    448 10M 

South  Ottawa  v.  Perkins.  04  U.  S.  260;   24  L.  ed.  154 1023 

Southern   Pacific  Ry.  v.  Denton,   146  U.   S.  202:    13   Sup.  Ct.  Rep.   44; 

36    L.    ed.    0  12 0*6 

Spalding  v.  Vilas.  161  U.  S.  4*3:   16  Sup.  Ct.  Rep.  631:  40  L.  ed.  780  1313 


lx  Table  of  Cases. 

PAGE. 

Spencer  v.    Board,   8  D.    C.    169 259 

Spencer  v   Merchant,  125  U.  S.  345;  8  Sup.  Ct.  Rep.  921;  31  L.  ed.  763.  932 

Spies,  Ex  parte,  123  U.  S.  131;  8  Sup.  Ct.  Rep.  22;  31  L.  ed.  80 183 

Spragins  v.   Houghton,  3   111.  377 259 

Spratt  v.  Spratt,  4  Pet.  393 ;  7  L.  ed.  897 281 

Spreckles  Sugar  Refining  Co.  v.  McClain,  192  U.  S.  397 ;  24  Sup.  Ct.  Rep. 

376;   48  L.   ed.  496 619 

Springer  v.  United  States,  102  U.  S.  586;  26  L.  ed.  253 63,  616,  1279 

Springville  v.  Thomas,  166  U.  S.  707;   17  Sup.  Ct.  Rep.  717;  41  L.  ed. 

1172   408 

St.  Louis  v.  Western  Union  Tel.  Co.,  148  U.  S.  92;    13  Sup.  Ct.  Rep. 

485 ;  37  L.  ed.  380 379,  702 

Stanley^ v.  Schwalby,  162  U.  S.  255;   16  Sup.  Ct.  Rep.  754;   40  L.  ed. 

960 • 1102,  11C3 

Stanly  County  v.  Coler,  190  U.  S.  347;  23  Sup.  Ct.  Rep.  811;  47  L.  ed. 

1126   925 

Stanton  v.  Wilkeson,  8  Ben.  357 1 180 

State  v.  Alston,  94  Tenn.   674 599 

State  v.  Bowen,  45  Minn.   145 819 

State  v.  Carman,  63  Iowa,  130. 814 

State  v.  Claiborne,  1  Meigs   (Tenn.) ,  331 266 

State   v.    Clark,   30   Wash.    439 599 

State  v.  Dalrymple,  70  Ind.  294 59.1 

State  v.  Hamlin,  86  Me.  495 .' 599 

State  v.   Henderson,   160  Mo.    190 599 

State  v.  Hensley,  79  N.  E.  Rep.  462 816 

State  v.  Layne,  96  Tenn.  668 819 

State  v.  Mansfield,  41  Mo.  470 814 

State  v.  Manuel,  3  Dev.  &  Bat.   20 265 

State  v.  Morrill,  16  Ark.  384 12G9 

State  v.  Noyes,  30  N.  H.  279 1317 

State  v.  Vinsonhaler  (Nebr. ) ,  105  N.  W.  Rep.  472 600 

State  v.  Wapello,   13  Iowa,  388 586 

State  Bank  of  Ohio  v.  Knoop,  16  How.  369 ;   14  L.  ed.  977 914 

State  Board  of  Assessors  v.   Comptoir  National  D'Escompte,  191  U.  S. 

388;  24  Sup.  Ct.  Rep.  109;  48  L.  ed.  232 965 

State  Freight  Tax  Case,  15  Wall.  232;  21  L.  ed.  146 663,  720,  968 

State  Railroad  Tax  Cases,  92  U.  S.  575;  23  L.  ed.  663 598,  725,  967 

State  of  South  Carolina  v.  United  States,  199  U.  S.  437;  26  Sup.  Ct.  Rep. 

110;    50    L.    ed.    261 115 

State  Tax  on  Foreign  Held  Bonds,  15  Wall.  300;  21  L.  ed.  179.  .955,  9G1,  963 

State  Tax  on  Railway  Gross  Receipts,  15  Wall.  284;   21  L.  ed.  164..  720 

724,  968 

State  ex  rel.  Foot  v.  Bazille,  97  Minn.  11 600 

Stearns  v.  Minnesota,  179  U.  S.  223;  21  Sup.  Ct.  Rep.  73;  45  L.  ed.  162.  212 
Stephens  v.  Cherokee  Nation,  174  U.  S.  445;  19  Sup.  Ct.  Rep.  722;  43 

L.   ed.    1041 . . . ." 312 

Stewart  v.  B.  &  O.  R.  R.  Co.,  168  U.  S.  445;   18  Sup.  Ct.  Rep.  105;  42 

L.   ed.    537 200 


Table  of  Cases.  bri 

PAGE. 

Stewart  v.  Kahn,  11  Wall.  493;  20  L.  ed.  176 339,  1213 

btoekard  v.  Morgan,  1S5  U.  8.  27;  22  Sup.  Ct.  Rep.  576;  46  L.  ed.  785.  706 
Stone  v.  111.  Cent.  Ry.  Co.,  116  U.  S.  347;  6  Sup.  Ct.  Rep.  348;  29  L.  ed. 

650 910 

Stone  v.  Mississippi,  101  U.  S.  814;  25  L.  ed.  1079 903,  905 

Moutenburgh  v.  Hennick,  129  U.  S.  141;  9  Sup.  Ct.  Rep.  256;  32  L.  ed. 

637 376,  441,  773 

Binder  v.  Graham,  10  How.  82;  13  L.  ed.  337 241 

Strauder  v.  West  Virginia,  100  U.  S.  303;  25  L.  e<L  664... 90,  129,  276,  884 

Mi  awl.ridge  v.  Curtis,  3  Cr.  267 ;  2  L.  ed.  435 984 

Stuart  v.  Laird,  1  Cr.  299;  2  L.  ed.  115 26 

Sturges  v.  Crowninshield,  4  Wh.   122;  4  L.  ed.  529 74,  775 

Sugar  Trust  Case  of  United  States  v.  E.  C.  Knight  Co.,  156  U.  S.  1 ;  15 

Sup.  Ct.  Rep.  249;   39  L.  ed.  325 * 752 

Sully  v.  American  National  Bank,  178  U.  S.  289;  20  Sup.  Ct.  Rep.  935; 

44    L.  ed.    1072 221 

Supervisors  v.  Durant,  9  Wall.  415 ;    19  L.  ed.  732 : 142 

Swafford  v.  Templeton,  185  U.  S.  487;  22  Sup.  Ct.  Rep.  783;  46  L.  ed. 

1005   .  .   . 543 

S\\  [ft  v.  Newport,   7  Bush,  37 597 

Swift  v.  Tyson,  16  Pet.  1 ;   10  L.  ed.  865 1034 

Swift  v.  United  States,  105  U.  S.  691 ;  26  L.  ed.  1108 26 

Swift  4  Co.  v.  United  States,  196  U.  S.  375;  25  Sup.  Ct.  Rep.  276;  49 

L.  ed.   518 758 

T. 

Tal'  ot  v.  Janson,  3.  Dall.  133 ;  1  L.  ed.  540 260,  290 

Tappan  v.  Merchants'  National  Bank,  19  Wall.  490;  22  L.  ed.  189 958 

960,  963 

Tarhle's  Ca.se,   13  Wall.  397 ;  20  L.  ed.  597 1199 

Taylor  v.   Beckham,   178  U.  S.  548;   20  Sup.  Ct.  Rep.   890;   44  L.  ed. 

1 187 167,  171 

Taylor  v.  Morton,  2  Curt,  C.  C.  454;  Fed.  Cas.  No.  13,799. ..  .486,  487,  513 

Taylor  v.  Place.  4  R.  T.  32 1 1264 

Taylor  v.  Porter,  4   Hill.    146 624 

Taylor  v.  Taintor.  16  Wall.  366;  21  L.  ed.  287 226 

Tenne-see  v.  Davis.  100  U.  S.  257:  25  L.  ed.  648 125,   1020,  1154 

Terlinden   v.   Ames,    184   U.   S.   270;    22   Sup.   Ct.   Rep.   484;    46  L.   ed. 

634 518,  1007,  1280 

Terrett  v.  Taylor,  n  Cr.  43 :  3  L.  ed.  650 P07 

Terry.  Ex  parte,  128  U.  S.  280 ;  9  Sup.  Ct.  Rep.  77;  32  L.  ed.  405 809 

Texas  v.  White.  7   Wall.  700;    10  L.  ed.  227.... 39,  BS,   163.   1056.  1215.  1222 

Thomas  v.  Gay,  169  U.  S.  264;  18  Sup.  Ct  Rep.  340;  42  L.  ed.  740.  .312.  4^5 

495,  931 

Thomas  v.  Loney.  134  U.  S.  372:  10  Sup.  Ct.  Rep.  384;  33  L.  ed.  949..  134 
Thompson  v.  Kentucky.  200  U.  S.  340:  28  Sup.  Ct.  Rep.  533;  52  L.  ed. 

864 

Thomnson  v.  Kidder    fK.  H.),   65    Atl.  Rep.   302 599 

Thompson  v.  Missouri.   171   U.  8.  3S0:    IS  Sup.  Ct.  Rep.  922:  43  L.  ed. 

204 805 


lxii  Table  of  Cases. 

page. 
Thompson  v.  United  States,   155  U.  S.  271;    15   Sup.  Ct.  Rep.   73;   39 

L,  ed.   146 819 

Thompson  v.  Utah,   170  U.  S.  343;    18  Sup.  Ct.  Rep.  620;   42  L.  ed. 

10G1 408,  804,  808,  814 

Thomson  v.  Union  Pacific  R.  Co.,  9  Wall.  579;  19  L.  ed.  792 96 

Thoriugton  v.  Smith,  8  Wall.  1 ;  19  L.  ed.  361 M4 

Tiburcio,  In  re,  6  Sawyer,  349 " 502 

Tindal  v.  Wesley,  167  U.  S.  204;  17  Sup.  Ct.  Rep.  770;  42  L.  ed.  137..  110) 
Tinsley  v.  Anderson,  171  U.  S.  101;   18  Sup.  Ct.  Rep.  805;   43  L.  ed. 

91 138,  B8B 

Toledo,  etc.,  R.  Co.  v.  Penn.  Co.,  54  Fed.  Rep.  730 855 

Tomlinson  v.  Branch,  15  Wall.  460 ;  21  L.  ed.  189 1083 

Tonawanda  v.  Lyon,  181  U.  S.  389;  21  Sup.  Ct.  Rep.  609;  45  L.  ed.  908.  938 

Totten  v.  United  States,  92  U.  S.  105 ;  23  L.  ed.  605 1170 

Township  of  Pine  Grove  v.  Talcott,  19  Wall.  666;  22  L.  ed.  227 924,  925 

Trade-Mark  Cases,   100  U.  S.  25;   25  L.  ed.   550 17,  18,  793 

Treat  v.  White,  181  U.  S.  264;  21  Sup.  Ct.  Rep.  611;  45  L.  ed.  853.  .  ..  19 
Trono  v.  United  States,  199  U.  S.  521;  26  Sup.  Ct.  Rep.  121;  50  L.  ed. 

292 881 

Tua  v.  Carriere,  117  U.  S.  201 :  6  Sup.  Ct.  Rep.  565;  29  L.  ed.  855 780 

Tucker  v.  Ferguson,  22  Wall.  527;  22  L.  ed.  805 899,  906 

Tucker  v.  Potter,  35  Conn.  46 Ill 

Turner  v.  Maryland,  107  U.  S.  38;  2  Sup.  Ct.  Rep.  44;  27  L.  ed.  370.661,  G71 

Turner  v.  Williams,  194  U.  S.  279;  24  Sup.  Ct.  Rep.  719;  48  L.  ed.  979.  2.13 

Turpin  v.  Burgess,  117  U.  S.  504;  6  Sup.  Ct.  Rep.  835;  29  L.  ed.  988..  fill 

Turpin  v.  L^mon,  187  U.  S.  51 ;  23  Sup.  Ct.  Rep.  20;  47  L,  ed.  70 62S 

Twin  City  Natronal  Bank  v.  Xebeker,  167  U.  S.  19.6;   17  Sup.  Ct.  Rep. 

766;   42  L.  ed.  134 5C6 

Twining  v.  New  Jersey,  211  U.  S.  78;   29   Sup.  Ct.  Rep.   14;   53  L.  ed. 

97 824,  857,  859,  861 

Twitchell  v.  Penn.,  7  Wall.  321  ;   19  L.  ed.  223 877 

Tyler,  In  re,  149  U.  S.  164;  13  Sup.  Ct.  Rep.  785;  37  L.  ed.  689...  1083,  1092 

Tyler  v.  Defrees,  11  Wall.  331;  20  L.  ed.  161 1211 

Tyson  v.  State,  28  Ind.  577 599 

U. 
Ulman  v.  Baltimore,  165  U.  S.  719;   17  Sup.  Ct.  Rep.   1001;  41  L.  ed. 

1 184 932 

Union  Bridge  Co.  v.  United  States,  204  U.  S.  364 ;  27  Sup.  Ct.  Rep.  367 ; 

51    L.   ed.  523 1322 

Union  Pacific  R.  R.  Co.  v.  Peniston,  18  Wall.  5;  21  L.  ed.  787 97,  714 

Union  Refrigerator  Transit  Co.  v.  Kentucky,  199  U.  S.  194:   26  Sup.  Ct. 

Rep.  36;   50  L.  ed.   150 717,  930,  947,  949,  954,  955 

Union  Trust  Co.  v.  Wayne  Probate  Judge,  125  Mich.  487 599 

United  States  v.  Alger,'  152  U.  S.  384;  14  Sup.  Ct.  Rep.  635;  38  L.  ed. 

488 27 

United  States  v.  Anthony,  11   Blatchf.  200 259 

United  States  V.  Arjona,  120  U.  S.  479;  7  Sup.  Ct.  Rep.  628;  30  L.  ed. 

728  - 25fi.  79t 


Taulk  (if  (  'as  is.  Ixiii 

PAGE. 

United  States  v.  Bailer,  9  Pet.  238;  9  L.  ed.  113 1329 

United  States  v.  Ballin,  144  U.  S.  1 ;   12  Sup.  Ct.  Rep.  507;   36  L.  ed. 

321 563 

United  States  v.  Ball,  163  U.  S.  662;   16  Sup.  Ct.  Rep.  1192;  41  L.  ed. 

300 820,  821 

United  States  v.  B.  &  O.  Ry.,  17  Wall.  322 ;  21  L.  ed.  597 114 

United  States  v.  Bell  Telephone  Co.,  128  U.  S.  315;  9  Sup.  Ct  Rep.  90; 

32   L.   ed.   450 1167 

United  States  v.  Bevans,  3  Wh.  336 :  4  L.  ed.  404 1113 

United  States  v.  Black,  128  U.  S.  40;  9  Sup.  Ct.  Rep.  12;  32  L.  ed.  354.  1299 

United  States  v.  Buford,  3  Pet.   12 ;  7  L.  ed.  585 1070 

United  States  v.  Burr,  2  Burr's  Trial.  40.1 839 

United  States  v.  Butterworth.    112    U.   S.   50;   5   Sup.   Ct.  Rep.  25;   28 

L.    ed.    656 1270 

United  States  v.  Carlisle,  1(5  Wall.  147 :  21  L.  ed.  426 246 

Uniied  States  v.   Circuit  Court,  126  Fed.  Rep.  169 145 

United   States  v.  Clarke,  8  Pet.  436;  8  L.  ed.  1001 1096 

United  States   v.   Cobb,   11    Fed.   Rep.   76 1164 

United  States  v.  Coe,  155  U.  S.  76;  15  Sup.  Ct.  Rep.  16;  39  L.  ed.  76..  370 

United  States  v.  Colorado  &  N.  W.  R.  Co.,  157  Fed.  Rep.  321 745 

United  States  v.  Croscy,   1   Hughes,  448 .'. . .  259 

United  States  v.  Cross,   1  MaeArthur,   149 .• 8l"2 

United  States  v.  Cmikshank,  92  U.  S.  542;  23  L.  ed.  588 538,  845,  877 

United   States  v.  D.,  L.  &  W.  R.  Co.    (C.  C),  152  Fed.  Rep.  269 732 

United  States  v.  Dawson,  15  How.  467 ;  14  L.  ed«.  775 410,  807 

United  Stat,,  v.  Delaware  &  H.  Co.,  213  U.  S.  366;   29  Sup.  Ct.  Rep. 

527 ;    53   L.   ed.    836 16,  763 

United  States  v.  Diekelman,  92  U.  S.  520;  23  L.  ed.  742 1242 

United  States  v.  Duell,  172  U.  S.  576;  19  Sup.  Ct.  Rep.  286;  43  L.  ed. 

559 1276 

United  State-  v.  K.  (  .  Knight  Co.,  156  U.  S.  1;   15  Sup.  Ct.  Rep.  249; 

39  L.  ed.  325 641 

United  States  v.  Eaton,  144  U.  S.  677;  12  Sup.  Ct.  Rep.  764;  36  L.  ed. 

69 1 1328 

United  States  v.  Eliason,  10  Pet.  291;   10  L.  ed.  968 1160,  1104.  1326 

United  States  v.  Ferreira,  13  How.  40;  14  L.  ed.  42 1178,  1274 

United  States  v.  Fisher.  2  Cr.  358;  2  L.  ed.  304 58 

United  States  v.  Forty-three    Gallons    of    Whiskey,    93   U.    S.    188;    23 

L.  ed.   846 299,  769 

United  States  v.  Freeman.  3  How.  556;    11  L.  ed.  724 1208 

United   States  v.  Gleason,  78  Fed.  396 282 

United   State*  v.  Genmiine.   i)<)  U.   S.   SOS;    25  L.  ed.  482 1174 

United  States  v.  Gratiot,    14    Pet.   526;    10  L.  ed.  573 353 

United  States  v.  QreaJ   Calls   Manufacturing  Co.,  112  U.  S.  645;  5  Sup. 

Ct  Rep.  306:   is   1..  ed.   840 1001 

United  States  v.  Gieatlmuse.   2   Abb,    C.    C.   364 839 

United   States  v.  Greiner.    4    1'liila.   396 839 

United  Stales  v.  GNlfl    him.    170    U.   S.   409;    20  Sup.   Ct.   Rep.   415;    44 

L.    ed.    544 4S5 


lxiv  Table  of  Cases. 

page. 

United  States  v.  Guthrie,  17  How.  284;   15  L.  ed.  102 353,  1297 

United  States  v.  Hall,  2  Wash.  C.  C.  366 804 

United  States  v.  Hartwell,  6  Wall.  385;  18  L.  ed.  830 528,  1180 

United  States  v.  Hirschfield,   3   Blatchf.   330 259 

United  States  v.  Holliday,  3  Wall.  407;  18  L.  ed.  182 299,  736,  773 

United  States  v.  Howland,  4  Wh.  108;  4  L.  ed.  526 1025 

United  States  v.  Hoxie,  1  Paine    (U.  S.) ,  2G5 836 

United  States  v.  Huckabee,  16  Wall.  414;  21  L.  ed.  457 339 

United  States  v.  Johnston,    124   U.    S.   236;    8    Sup.    Ct.   Rep.   446;    31 

L.   ed.   389 398 

United  States  v.  Kendall,  5  Cr.  C.  C.   163 1157 

United  States  v.  Joint  Traffic  Association,   171  U.  S.  505;    19  Sup.  Ct. 

Rep.  25;  43  L.  ed.  259 753,  766 

United  States  v.  Jones,   109  U.  S.  513;  3  Sup.  Ct.  Rep.  346;  27  L.  ed. 

1015   68,  455 

United  States  v.  Jung  Ah  Lung,  124  U.  S.  621;  8  Sup.  Ct.  Rep.  663; 

31   L.   ed.   591 1287 

United  States  v.  Ju  Toy,  198  U.  S.  253;  25  Sup.  Ct.  Rep.  644;  49  L.  ed. 

1040 63,  253,  1286,  1289 

United  States  v.  Kagama,    118  U.   S.   375;   6   Sup.   Ct.  Rep.    1109;    30 

L.*  ed.    228 64,  299,  309,  314,  360,  773 

United  States  v„  Keokuk,  '6  Wall.  514;    18  L.  ed.  933 142 

United  States  v.  Kirby,  7  Wall.  482;  19  L.  ed.  278 792 

United  States  v.  Lee,  106  U.  S.  196;    1   Sup.  Ct.  Rep.  240.;   27  L.  ed. 

171 1080,  1081,  1098,  1229 

United  States  v.  Lee  Yen  Tai,  185  U.  S.  213;  22  Sup.  Ct.  Rep.  629;  46 

L.  ed.   878 486 

United  States  v.  Louisiana,  123  U.  S.  32;  8  Sup.  Ct.  Rep.  17;  31  L.  ed. 

69 975 

United  States  v.  McBratney,  104  U.  S.  621 ;  26  L.  ed.  869 485 

United  States  v.  McDaniel,  7  Pet.  1 ;  8  L.  ed.  587 1165 

United  States  v.  Maid,    116  Fed.   Rep.   650 1327 

United  States  v.  Marigold,  9  How.  560;  13  L.  ed.  257 766,  782,  816 

United  States  v.  Miller,   128  U.   S.  40;    9  Sup.  Ct.  Rep.  12;   32  L.  ed. 

354 1299 

United  States  v.  Mitchell,  2  Dall.  348;   1  L.  ed.  410 836 

United  States  v.  Mouat,  124  U.  S.  303;  8  Sup.  Ct.  Rep.  505;  31  L.  ed. 

463 1174 

United  States  v.  Norsch,  42   Fed.  Rep.  417 282 

United  States  v.  North  Carolina,  136  U.  S.  211;   10  Sup.  Ct.  Rep.  920; 

34  L.  ed.  336 1057,  1069 

United  States  v.  Palmer,  3  Wh.  610 :  4  L.  ed.  471 . .  . ._ 1005 

United  States  v.  The  Peggy,  1  Cr.  103 ;  2  L.  ed.  49 495 

United  States  v.  Percheman,  7  Pet.  51 ;   8  L.  ed.  604 484 

United  States  v.  Perez,  9  Wh.  579 ;  6  L.  ed.  165 819 

United  States  v.  Perkins,  116  U.  S.  483;  6  Sup.  Ct.  Rep.  449;  29  L.  ed. 

700 1185 

United  States  v.  Perkins,    163  U.   S.   625;    16   Sup.   Ct  Rep.   1073;    41 

L.    ed.   287 108 

United  States  v.  Peters,  5  Cr.   115:  3  L.  ed.  53 79,   1075.  1099 


Table  of  Cases.  lxv 

PAGE. 

United  States  v.  Petit,  11  Fed.  Rep.  58 812 

United  States  v.  Port  of  Mobile,  12  Fed.  768 : 896 

United  States  v.  Price,  116  U.  S.  43;   6  Sup.  Ct.  Rep.  235;   29  L.  ed. 

541   805 

United  States  v.  Pridgeon,    153   U.    S.    48;    14   Sup.    Ct.   Rep.    746;    38 

L.  ed.    631 370 

United  States  v.  Pryor,   3  Wash.  234 839 

United  States  v.  Rauscher,    119   U.  S.   407;    7    Sup.   Ct.   Rep..  234;    30 

L.    ed.    425 225,  231 

United  States  v.  Realty  Co.,  163  U.  S.  427;   16  Sup.  Ct.  Rep.  1120;  41 

L.    ed.    215 11,  592,  608,  805 

United  States  v.  Reese,  92  U.  S.  214;   23  L.  ed.  563 17,  90,  259,  538 

542,  550 

United  States  v.  Rice,  4  Wh.  246;  4  L.  ed.  562 245,  380 

United  States  v.  Rickert,  188  U.  S.  432;  23  Sup.  Ct.  Rep.  478;  47  L.  ed. 

532 103,  307,  31 4 

United  States  v.  Russell,  13  Wall.  623;  20  L.  ed.  474 1243 

United  States  v.  St.  Petersburg,  3  Hughes,  493 259 

United  States  v.  San  Jacinto  Tin  Co.,  125  U.  S.  273;  8  Sup.  Ct.  Rep. 

850;   31   L.   ed.   747 1167 

United  States  v.  Sanges,  144  U.  S.  310;  12  Sup.  Ct.  Rep.  609;  36  L.  ed. 

445 820 

United  States  v.  Schurz,  102  U.  S.  378 ;  26  L.  ed.  167 141,  1299 

United  States  v.  Scott,   148  Fed.  Rep.   431 747 

United  States  v.  Simon,  170  Fed.  Rep.  680 283 

United  States  v.  Sing  Tuck,  194  U.  S.   161;  24  Sup.  Ct.  Rep.  621;   48 

L.   ed.    917 1289 

United  States  v.  South  Carolina,  199  U.  S.  437;  26  Sup.  Ct.  Rep.  110; 

50   L.   ed.  261 153 

United  States  v.  State  Bank,  6  Pet.  29 ;  8  L.  ed.  308 25 

United  States  v.  Synionds,  120  U.  S.  46;  7  Sup.  Ct.  Rep.  411;  30  L.  ed. 

557  1330 

United  States  v.  Tarble,   13  Wall.   397 ;   20  L.  ed.  597 131 

United  States  v.  Taylor,   3  Mc-( 'vary.  500 814 

United  States  v.  Texas,  143  U.  S.  621;  12  Sup.  Ct.  Rep.  488;  36  L.  ed. 

285 1057,  1069 

United  States  v.  Trans-MuBOQrJ   Freight  Association,  166  U.  S.  290;  17 

Sup.  Ct.  Rep.  540 ;  41  L.  ed.  1007 34,  750,  753 

United  Btatee  v.  Union  P.  R.  Co.,  ill  U.  S.  72;  23  L.  ed.  324 35 

United  States  v.  Villato,  2  Dall.  370;   1  L.  ed.  410 835 

United  States  v.  Waddell,  112  U.  S.  76;  5  Sup.  Ct.  Rep.  35;  28  L.  ed. 

673   192,  812 

United  State*  v.  Weil.  28  <  t.  <>f  <  1.  523 570 

United  States  v.  Williams,   104   U.   S.   270;   24   Sup.   Ct.   Rep.   719;    48 

]..   ed.    070 843 

United  States  v.  Wiltberger,  5  Wh.  76;  5  L.  ed.  37 835 

United  States  v.  Windoni.    137    U.   S.   636;    11    Sup.   Ct.   Rep.    197;   34 

L.  ed.    811 1299 

V 


lxvi  Table  of  Cases. 

page. 
United  States  v.  Wong  Kim  Ark,  169  U.  S.  649;   18  Sup.  Ct.  Rep.  456; 

42   L.   ed.   890 29,  246,  270,  274,     2S1 

United  States  v.  Worrall,   2  -Dall.   384;    1  L.  ed.  426 726 

United  States  v.  Wynn,   3   McCrary,   266 SI 2 

United  States  v.  Yellow  Sun,  1  Dill.  271 307 

United  States  ex   rel.    Boynton   v.   Blaine,   139   U.   S.   306;    11    Sup.   Ct. 

Rep.  607 ;  35  L.  ed.  183 1008 

United  States  ex   rel.   Drury  v.  Lewis,  200  U.   S.   1;    26  Sup.  Ct.  Rep. 

229;  50  L.  ed.  343 138,     139 

V. 

Vallandigham,  Ex  parte,  1  Wall.  243;   17  L.  ed.  589 1254 

Van  Allen  v.  Assessors,  3  Wall.  573 ;  18  L.  ed.  229 105,     106 

Van  Brocklin  v.    Tennessee,    117    U.   S.    151;    6    Sup.   Ct.  Rep.  €70;    29 

L.    ed.    845 102,     379 

Vance  v.  Hadfield,  22  X.  Y.  588 1295 

Vance  v.  Vandercook  Co.,  170  U.  S.  438;  18  Sup.  Ct.  Rep.  674;  42  L.  ed. 

1100 116,  6S5,     695 

Vanderbilt  v.  Adams,  7  Cow.  349 1295 

Van  Xess  Case,  CI.   &  H.   122 560 

Van  Valkenburg  v.   Brown,  43  Cal.  42 259 

Van  Zandt  v.  Waddel,  2  Yerg.  260 024 

Veazie  Bank  v.  Fenno,  8  Wall.  533;   19  L.  ed.  482 61,  111,  578,  615,     619 

7(36",     767 

Venus.  The,  8  Cr.  253 ;  3  L.  ed.  553 250 

Virginia,  Ex  parte,  100  U.  S.  339;  25  L.  ed.  676.  .149,  189,  276,  866,  867,     885 

Virginia  v.  Rives,  100  U.  S.  313;  23  L.  ed.  667 ." 188,     884 

Virginia  v.  Tennessee,  148  U.  S.  503;   13  Sup.  Ct.  Rep.  728;   37  L.  ed. 

537 235 

Virginia  v.  Tennessee,  158  U.  S.  267;   15  Sup.  Ct.  Rep.  818;   39  L.  ed. 

976 1043 

Virginia  v.  West  Virginia,  11  Wall.  39 ;  20  L.  ed.  67 1043 

W. 

Wat  ash,  St.  L.  &  P.  R.  Co.  v.  Illinois,  118  U.  S.  557;  7  Sup.  Ct.  Rep.  4; 

30  L.  ed.  244 730* 

Wales  v.  Belcher,  3  Pick.  508 155 

Walker  v.  Sauvinet,  92  U.  S.  90;  23  L.  ed.  678 868 

Wallace  v.  Myers,  38  Fed.  Rep.  184 509 

Walling  v.  Michigan,  116  U.  S.  446;  6  Sup.  Ct.  Rep.  454:  29  L.  ed.  691.  705 

Walston  v.  Nevin,  128  U.  S.  578;  9  Sup.  Ct.  Rep.  192;  32  L.  ed.  544.  ...  932 
Wan  Sfcing  v.  United  States,  140  U.  S.  424;   11  Sup.  Ct.  Rep.  729;  35 

L.  ed.  503 1287 

Ward  v.  Maryland,  12  Wall.  418;  20  L.  ed.  449 214,  704,  928 

Ward  v.  Race  Horse,   163  U.  S.  504;    16  Sup.  Ct.  Rep.  1076;   41  L.  ed. 

244 485,  500 

Ware  v.  Hylton,  3  Dall.  199;  1  L.  ed.  568 79.  494,  495,  496,  500 

Ware  v.  Mnhile.  209  C  S.  405;  28  Sup.  Ct.  Rep.  526  ;  52  L.  ed.  855 708 

Ware  v.   Winner.  50  Fed.  310 259 

Waving  v.  Clarke,  5  How.  441 :   12  L.  ed.  226 1 107 


Table  of  Cases.  lxvii 

PAGE. 

Warner,  Barnes  &  Co.  v.  United  States,  197  U.  S.  419;  25  Sup.  Ct.  Eep. 

455;  49  L.  ed.  816 442 

Washington  University  v.  Rouse.  8  Wall.  439 ;  19  L.  ed.  498 52 

Water*  Pierce  Oil  Co.  v.  Texas,  177  U.  S.  28;  20  Sup.  Ct.  Rep.  518;  44 

L.  ed.  057 . 221,  698 

Wat  kins  v.  Holman,  16  Pet.  25 ;  10  L.  ed.  873 202 

Wat  son  v.  Jones.  13  Wall.  679 ;  20  L.  ed.  666 842 

Watson  v.  Mercer,  8  Pet.  88;  8  L.  ed.  876 892 

I  'ay  man  v.  Southard,  10  Wh.  1 ;  6  L.  ed.  253 .' 1330 

Wayne  Co.  v.  Kennicott,  103  U.  S.  554 ;  26  L.  ed.  317 841 

Weatherlcy  v.  Weatherley,  Transvaal  Prov.  Rep.  G6;  1  Beale's  Cas.  420.  206 

Webber  v.  Virginia.  103  U.  S.  334;  26  L.  ed.  565 100,  704,  793 

Weber  v.  Harbor  Commissioners,  18  Wall.  57;  21  I*  ed.  798 .' 241 

Weber  v.  Lee  Co.,  6  Wall.  2T0 ;  18  L.  ed.  781 142 

Weber  v.  llogan,  188  U.  S.  10;  23  Sup.  Ct.  Rep.  263;  47  L.  ed.  363 917 

Webster  v.  Reid,  11  How.  437;  13  L.  ed.  761 408,  808 

Wehlitz,  Re,  1C  Wis.  443 259,  272 

Wells  v.  Mayor  of  Savannah,  181  U.  S.  531;  21  Sup.  Ct.  Rep.  097;  45 

L.  ed.  986 906 

Welton  v.  Missouri,  91  U.  S.  275;  23  L.  ed.  347 704 

West  v.  Louisiana.  194  U.  S.  258;  24  Sup.  Ct.  Rep.  650;  48  L.  ed.  965. .  863 

Western  Sav.  Fund  Co.  v.  Philadelphia,  31  Pa.  St.  175 117 

Western.  Union  Telegraph  Co.  v.  Borough  of  New  Hope,  187  U.  S.  419; 

23  Sup.  Ct.  Rep.  204;  47  L.  ed.  240 702,  725 

Western  Union  Telegraph  Co.  v.  Call  Publishing  Co.,  181  U.  S.  92;   21 

Sup.  Ct.  Re]).  501 :  45  L.  ed.  765 726,  727,  1032 

Western  Union  Tel.  Co.  v.  James,  162  U.  S.  650;  10  Sup.  Ct.  Rep.  934; 

40  L.  ed.   1 105 ' 666,  670 

Western  Cnion  Telegraph  Co.  v.  Kansas,  216  U.  S.  1 ;  30  Sup.  Ct.  Rep. 

1!I0 150,  221,  098,  725,  958 

Western  Union  Telegraph  Co.  v.  Massachusetts,  125  U.  S.  530;  8  Sup.  Ct. 

Sep,  961 ;  31  L.  ed.  790 699,  717,  950 

W.  U.  Tel.   Co.  v.   Taggart,   163  U.  S.   1 ;    16   Sup.  Ct.  Rep.   1054;   41 

L.  ed.  49 719,  950,  951 

W.  U.  Telegraph  Co.  v.  Texas,  105  U.  S.  460;  26  L.  ed.  1067 102 

Weston  v.  Charleston,  2  Pet.  449;  7  L.  ed.  481 82,  103 

Wbeatta  v.  Miekel.  67   X.  J.  L.   525;   42  Atl.   Rep.  843 948 

\\ "heaton  v.  Peter*,  8  Pet.  591 ;  8  L.  ed.  1055 1031 

Wheeling  |   Belmont  Bridge  Co.  v.  Wheeling  Bridge  Co.,  138  U.  S.  287; 

1 1  Sup.  (  t.  Rep.  301 :  34  L.  ed.  907 900 

White  v.  Berry.  171  U.  S.  300:   18  Sup.  Ct.  Rep.  917;  43  L.  ed.  199 11S5 

Wight  v.  Davidson,  181  U.  S.  371;  21  Sup.  Ct.  Rep.  616;  45  L.  ed.  900.  938 

939,  941 

Wilcox  v.  Jackson,  13  Pet.  498 ;  10  L.  ed.  264 115!) 

Wiley  v.  Sinkler.  179  U.  S.  5S ;  i>l   Sup.  Ct.  Rep.  17;  45  L.  ed.  84 542 

\N:lkerson  v.  Utah.  9!)  U.  S.   130;   25  L.  ed.  345 831 

Willard  v.  Preetary,  14  Wall.  070:   20  L.  ed.  719 932 

Williams  v.  Mississippi,  170  U.  S.  213;   IS  Sup.  Ct.  Rep.  583;  42  L.  ed. 

1012 552,  884 


lxviii  Table  of  Cases. 

PAGE. 

Williams  v.  Suffolk  Insurance  Co.,  13  Pet.  415;  10  L.  ed.  226 1004 

Williams  v.  United  States,  1  How.  290;  11  L.  ed.  135 1159 

Williams  v.  Wingo,  177  U.  S.  001 ;  20  Sup.  Ct  Rep.  793 894 

Williamson  v.  United  States,  207  D.  S.  425;  28  Sup.  Ct.  Rep.  163;  52 

L.  ed.  278 530 

Wilmerding,  In  re,  117  Cal.  281 599 

Wilson,  In  re,  15  Fed.  511 214 

Wilson,  Ex  parte,  114  U.  S.  417;  5  Sup.  Ct.  Rep.  935;  29  L.  ed.  89.  .  .29,  811 

Wilson  V.  Black  Bird  Creek  Marsh  Co.,  2  Pet.  245;  7  L.  ed.  412 654.  661 

Wilson  v.  Eureka  City,  173  U.  S.  32;    19  Sup.  Ct.  Rep.  317;  43  L.  ed. 

603 886,  1294 

Wilson  v.  McXamee,  102  U.  S.  572;  26  L.  ed.  234 661 

Wilson  v.  North  Carolina,   169  U.   S.  586;    18  Sup.  Ct.  Rep.  435;    42 

L.  ed.  865    170,  864 

Wilson  v.  Shaw,  204  U.  S.  24;  27  Sup.  Ct.  Rep.  233;  51  L.  ed.  351 764 

Wilson  v.  State,  16  Ark.  601 814 

Wisconsin  v.  Duluth,  96  U.  S.  379;  24  L.  ed.  668 1055 

Wisconsin  v.  Pelican  Insurance   Co.,    127   U.   S.   265;    8    Sup.   Ct.   Rep. 

1370 ;  32  L.  ed.  239 197,  203,  1055 

Wisconsin  C.  R.  Co.  v.  Price  County,  133  U.  S.  496;   10  Sup.  Ct.  Rep. 

341;  33  L.  ed.  687 103 

Wisconsin  M.  &  P.  Ry.  Co.  v.  Jacobson,  179  U.  S.  287;  21  Sup.  Ct.  Rep. 

115;  45  L.  ed.  194 666 

Wheaton  v.  Peters,  8  Pet.  591 ;  8  L.  ed.  1055 726 

White  v.  Hart,  13  Wall.  646 ;  20  L.  ed.  685 163,  523 

Whiting  v.  Fond  du  Lac,  25  Wis.  188 586 

Whitney  v.  Robertson,   124  U.  S.   190;   8  Sup.   Ct.  Rep.  456;   31   L.  ed. 

386 .' 487,  492,  514 

Wolfe  v.  Hartford  Life  Insurance  Co.,  148  U.  S.  389;  13  Sup.  Ct.  Rep. 

602  ;  37  L.  ed.  493 987 

Wolff  v.  New  Orleans,  103  U.  S.  358;  26  L.  ed.  395 896,  897,  1086 

Wolsey  v.  Chapman,  101  U.  S.  755;  25  L.  ed.  915 1160 

Wong  Wing  v.  United  States,  163  U.  S.  228;   16  Sup.  Ct.  Rep.  977;   41 

L.  ed.  140 1331 

Wood,  Ex  parte,  155  Fed.  190 138 

Wood  v.  Wagnon,  2  Cr.  9 ;  2  L.  ed.  191 987 

Woodruff  v.  Parham,  8  Wall.  123 :  19  L.  ed.  382 608,  711,  768,  770 

Woodruff  v.  Trapnall,  10  How.  190 :   13  L.  ed.  383 1086 

Worcester  v.  Georgia,  6  Pet.  515 ;  8  L.  ed.  483 82,  304,  313 

Work  v.  Ohio,  2  Ohio  St.  296 814 

Wright  v.  Nagle,  101  U.  S.  791 ;  25  L.  ed.  921 913 

Y. 

Yamataya  v.  Fisher,  189  U.  S.  86;  23  Sup.  Ct.  Rep.  611;  47  L.  ed.  721. .  1291 

Yang  Sing  Hee.  In  re,  13  Sawyer,  486 803 

Yarborough,  Ex  parte,  110  U.  S.  651 ;   4  Sup.  Ct  Rep.  152;   28  L.  ed. 

274 192,  541,  543,  o49 

Yick  Wo  v.  Hopkins,   118  U.   S.  356;   6  Sup.   Ct.  Rep.   1064;   30  L.  ed. 

220  ..  .  552.  885,  1293 

Young.  Re.  209  U.  S.  123;  28  Sup.  Ct.  Rep.  441 :  52  L.  ed.  71  * 1W3 


CONSTITUTION  OF  THE  UNITED  STATES.3 


We  the  people  of  the  United  States,  in  order  to  form  a  more 
perfect  union,  establish  justice,  insure  domestic  tranquillity,  pro- 
vide for  the  common  defense,  promote  the  general  welfare,  and 
secure  the  blessings  of  liberty  to  ourselves  and  our  posterity,  do 
ordain  and  establish  this  Constitution  for  the  United  States  of 
America. 

ARTICLE  I 

Section  1.  All  legislative  powers  herein  granted  shall  be  vested 
in  a  Congress  of  the  United  States,  which  shall  consist  of  a  Senate 
and  House  of  Representatives. 

Section  2.  1  The  House  of  Representatives  shall  be  composed 
of  members  chosen  every  second  year  by  the  people  of  the  several 
States,  and  the  electors  in  each  State  shall  have  the  qualifications 
requisite  for  electors  of  the  most  numerous  branch  of  the  State 
legislature. 

2  No  person  shall  be  a  representative  who  shall  not  have 
attained  to  the  age  of  twenty-five  years,  and  been  seven  years  a 
citizen  of  the  United  States,  and  who  shall  not,  when  elected, 
be  an  inhabitant  of  that  State  in  which  he  shall  be  chosen. 

3.  Representatives  and  direct  taxes  shall  be  apportioned  among 
the  several  States  which  may  be  included  within  this  Union, 
according  to  their  respective  numbers,  which  shall  be  determined 
bv  adding  to  the  whole  number  of  free  persons,  including  those 
bound  to  service  fur  a  term  of  years,  and  excluding  Indians  not 
taxed,  three  fifths  of  all  other  persons.2  The  actual  enumeration 
shall  be  made  within  three  years  after  the  first  meeting  of  the 
Congress  of  the  United  States,  and  within  every  subsequent  term 
of  ten  years,  in  such  manner  as  they  shall  by  law  direct.  The 
number  of  representatives  shall  not  exceed  one  for  every  thirty 
thousand,  but  each  State  shall  have  at  least  one  representative; 

1  This  reprint  of  the  Constitution  exactly  follows  the  text  <>f  that   in  the 
Department  of  State  at  Washington,  save  in  the  spelling  of  a  few  words. 
■Superseded  l>y  the  14th  Amendment. 

rixix] 


IxX  CONSTITUTION   OF  THE   UNITED   STATES. 

and  until  such  enumeration  shall  be  made,  the  State  of  Xew 
Hampshire  shall  be  entitled  to  choose  three,  Massachusetts  eight, 
Rhode  Island  and  Providence  Plantations  one,  Connecticut  five, 
Xew  York  six,  Xew  Jersey  four,  Pennsylvania  eight,  Delaware 
one,  Maryland  six,  Virginia  ten,  Xorth  Carolina  five,  South 
Carolina  five,  and  Georgia  three. 

4  When  vacancies  happen  in  the  representation  from  any  State, 
the  executive  authority  thereof  shall  issue  writs  of  election  to 
fill  such  vacancies. 

5  The  House  of  Representatives  shall  choose  their  speaker  and 
other  officers,  and  shall  have  the  sole  power  of  impeachment. 

Section  3.  1  The  Senate  of  the  United  States  shall  be-  com- 
posed of  two  senators  from  each  State,  chosen  by  the  legislature 
thereof  for  six  years ;  and  each  senator  shall  have  one  vote. 

2  Immediately  after  they  shall  be  assembled  in  consequence  of 
the  first  election,  they  shall  be  divided  as  equally  as  may  be  into 
three  classes.  The  seats  of  the  senators  of  the  first  class  shall 
be  vacated  at  the  expiration  of  the  second  year,  of  the  second 
class  at  the  expiration  of  the  fourth  year,  and  of  the  third  class  at 
the  expiration  of  the  sixth  year,  so  that  one  third  may  be  chosen 
every  second  year;  and  if  vacancies  happen  by  resignation,  or 
otherwise,  during  the  recess  of  the  legislature  of  any  State,  the 
executive  thereof  may  make  temporary  appointments  until  the 
next  meeting  of  the  legislature,  which  shall  then  fill  such 
vacancies. 

3  Xo  person  shall  be  a  senator  who  shall  not  have  attained 
to  the  age  of  thirty  years,  and  been  nine  years  a  citizen  of  the 
United  States,  and  who  shall  not,  when  elected,  be  an  inhabitant, 
of  that  State  for  which  he  shall  be  chosen. 

4  The  Vice  President  of  the  United  States  shall  be  President 
of  the  Senate,  but  shall  have  no  vote,  unless  they  be  equally 
divided. 

5  The  Senate  shall  choose  their  other  officers,  and  also  a  presi- 
dent pro  tempore,  in  the  absence  of  the  Vice  President,  or  when 
he  shall  exercise  the  office  of  President  of  the  United  States. 

6  The  Senate  shall  have  the  sole  power  to  try  all  impeach- 
ments. When  sitting  for  that  purpose,  they  shall  be  on  oath  or 
affirmation.     When  the  President  of  the  United  States  is  tried, 


Constitution  of  the  United  States.  lxxi 

the  chief  justice  shall  preside:  and  no  person  shall  be  convicted 
without  the  concurrence  of  two  thirds  of  the  members  present. 

7  Judgment  in  cases  of  impeachment  shall  not  extend  further 
than  to  removal  from  office,  and  disqualification  to  hold  and 
enjoy  any  office  of  honor,  trust  or  profit  under  the  United  States: 
but  the  party  convicted  shall  nevertheless  be  liable  and  subject 
to  indictment,  trial,  judgment  and  punishment,  according  to 
law. 

Section  4.  1  The  times,  places,  and  manner  of  holding  elec- 
tions for  senators  and  representatives,  shall  be  prescribed  in  each 
State  by  the  legislature  thereof;  but  the  Congress  may  at  any 
time  by  law  make  or  alter  such  regulations,  except  as  to  the 
places  of  choosing  senators. 

2  The  Congress  shall  assemble  at  least  once  in  every  year,  and 
such  meeting  shall  be  on  the  first  Monday  in  Desember,  unless 
they  shall  by  law  appoint  a  different  day. 

Section  5.  1  Each  House  shall  be  the  judge  of  the  elections, 
returns  and  qualifications  of  its  own  members,  and  a  majority 
of  each  shall  constitute  a  quorum  to  do  business ;  but  a  smaller 
number  may  adjourn  from  day  to  day,  and  may  be  authorized 
to  compel  the  attendance  of  absent  members,  in  such  manner,  and 
under  such  penalties  as  each  House  may  provide. 

2  Each  House  may  determine  the  rules  of  its  proceedings, 
punish  its  members  for  disorderly  behavior,  and,  with  the  con- 
currence of  two  thirds,  expel  a  member. 

3  Each  House  shall  keep  a  journal  of  its  proceedings,  and  from 
time  to  time  publish  the  same,  excepting  such  parts"  as  may  in 
their  judgment  require  secrecy;  and  the  yeas  and  nays  of  the 
members  of  either  House  on  any  question  shall,  at  the  desire  of 
one  fifth  of  tho^e  present,  lie  entered  on  the  journal. 

1  Neither  House,  during  the  session  of  Congress,  shall,  with- 
out the  consent  of  the  other,  adjourn  for  more  than  three  days, 
nor  to  any  other  place  than  that  in  which  the  two  Houses  shall 
be  sitting. 

Section  H.  1  The  senators  and  representatives  shall  receive  a 
compensation  for  their  services,  to  bt  ascertained  by  law.  and  paid 
out  of  the  Treasury  of  the  United  States.  They  shall  in  all 
cases,   except  treason,  felony  and  breach  of  the  peace,  be  privi- 


lxxii  Constitution  of  the  United  States. 

leged  from  arrest  during  their  attendance  at  the  session  of  their 
respective  Houses,  and  in  going  to  and  returning  from  the  same; 
and  for  any  speech  or  debate  in  either  House,  they  shall  not  be 
questioned  in  any  other  place.  • 

2  No  senator  or  representative  shall,  during  the  time  for  which 
he  was  elected,  be  appointed  to  any  civil  office  under  the  authority 
of  the  United  States,  which  shall  have  been  created,  or  the  emolu- 
ments whereof  shall  have  been  increased  during  such  time;  and 
no  person  holding  any  office  under  the  United  States  shall  be  a 
member  of  either  House  during  his  continuance  in  office. 

Section  7.  1  All  bills  for  raising  revenue  shall  originate  in 
the  House  of  Representatives;  but  the  Senate  may  propose  or 
concur  with  amendments  as  on  other  bills. 

2  Every  bill  which  shall  have  passed  the  House  of  Representa- 
tives and  the  Senate,  shall,  before  it  becomes  a  law,  be  presented 
to  the  President  of  the  United  States ;  if  he  approve  he  shall  sign 
it,  but  if  not  he  shall  return  it,  with  his  objections,  to  that  House 
in  which  it  shall  have  originated,  who  shall  enter  the  objections 
at  large  on  their  journal,  and  proceed  to  reconsider  it.  If  after 
such  reconsideration  two  thirds  of  that  House  shalL  agree  to  pass 
the  bill,  it  shell  be  sent,  together  with  the  objections,  to  the  other 
House,  by  which  it  shall  likewise  be  reconsidered,  and  if  approved 
by  two  thirds  of  that  House,  it  shall  become  a  law.  But  in  all 
such  cases  the  votes  of  both  Houses  shall  be  determined  by  yeas 
and  nays,  and  the  names  of  the  persons  voting  for  and  against  the 
bill  shall  be  entered  on  the  journal  of  each  House  respectively.  If 
any  bill  shall  not  be  returned  by  the  President  within  ten  (lavs 
(Sundays  excepted)  after  it  shall  have  been  presented  to  him,  the 
same  shall  be  a  law,  in  like  manner  as  if  he  had  signed  it,  unless 
the  Congress  by  their  adjournment  prevent  its  return,  in  which 
case  it  shall  not  be  a  law. 

3  Every  order,  resolution,  or  vote  to  which  the  concurrence  of 
the  Senate  and  House  of  Representatives  may  be  necessary  (ex- 
cept on  a  question  of  adjournment)  shall  be  presented  to  the 
President  of  the  United  States;  and  before  the  same  shall  take 
effect,  shall  be  approved  by  him,  or  being  disapproved  by  him, 
shall   be  repassed  by  two  thirds  of  the   Senate  and   House  of 


Constitution  of  the  United  States.  lxxiii 

Representatives,  according  to  the  rules  and?  limitations  prescribed 
in  the  case  of  a  bill. 

Section  8.  1  The  Congress  shall  have  power  to  lay  and  collect 
taxes,  duties,  imposts  and  excises,  to  pay  the  debts  and  provide 
for  the  common  defense  and  general  welfare  of  the  United  States; 
but  all  duties,  imposts  and  excises  shall  be  uniform  throughout 
the  United  States; 

2  To  borrow  money  on  the  credit  of  the  United  States ; 

3  To  regulate  commerce  with  foreign  nations,  and  among  the 
several  States,  and  with  the  Indian  tribes; 

4  To  establish  an  uniform  rule  of  naturalization,  and  uniform 
laws  on  the  subject  of  bankruptcies  throughout  the  United  States; 

5  To  coin  money,  regulate  the  value  thereof,  and  of  foreign 
coin,  and  fix  the  standard  of  weights  and  measures; 

6  To  provide  for  the  punishment  of  counterfeiting  the  securi- 
ties and  current  coin  of  the  United  States ; 

7  To  establish  post  offices  and  post  roads; 

8  To  promote  the  progress  of  science  and  useful  arts  by  secur- 
ing for  limited  times  to  authors  and  inventors  the  exclusive  right 
to  their  respective  writings  and  discoveries; 

9  To  constitute  tribunals  inferior  to  the  Supreme  Court; 

10  Define  and  punish  piracies  and  felonies  committed  on 
the  high  seas,  and  offenses  against  the  law  of  nations ; 

11  To  declare  war,  grant  letters  of  marque  and  reprisal,  and 
make  rules  concerning  captures  on  land  and  water; 

12  To  raise  and  support  armies,  but  no  appropriation  of  money 
to  that  use  shall  be  for  a  longer  term  than  two  years ; 

13  To  provide  and  maintain  a  navy; 

14  To  make  rules  for  the  government,  and  regulation  of  the 
land  and  naval  forces; 

15  To  provide  for  calling  forth  the  militia  to  execute  the  laws 
of  the  Union,  suppress  insurrections  and  repel  invasions; 

16  To  provide  for  organizing,  arming,  and  disciplining  the 
militia,  and  for  governing  such  part  of  them  as  may  be  employed 
in  the  service  of  the  United  States,  reserving  to  the  States  re- 
spectively the  appointment  of  the  officers,  and  the  authority  of 
training  the  militia  according  to  the  discipline  prescribed  ry 
( longress; 


Ixxiv  Constitution  of  the  United  States. 

17  To  exercise  exclusive  legislation  in  all  cases  whatsoever, 
over  such  district  (not  exceeding  ten  miles  square)  as  may,  by 
cession  of  particular  States  and  the  acceptance  of  Congress,  be- 
come the  seat  of  the  government  of  the  United  States,  and  to 
exercise  like  authority  over  all  places  purchased  by  the  consent  of 
the  legislature  of  the  State  in  which  the  same  shall  be,  for  the 
erection  of  forts,  magazines,  arsenals,  dockyards,  and  other  need- 
ful buildings;  and 

18  To  make  ail  laws  which  shall  be  necessary  and  proper  for 
carrying  into  execution  the  foregoing  powers,  and  all  other 
powers  vested  by  this  Constitution  in  the  government  of  the 
United  States,  or  in  any  department  or  officer  thereof. 

Section  9.  1  The  migration  or  importation  of  such  persons  as 
any  of  the  States  now  existing  shall  think  proper  to  admit,  shall 
not  be  prohibited  by  the  Congress  prior  to  the  year  one  thousand 
eight  hundred  and  eight,  but  a  tax  or  duty  may  he  imposed  on 
such  importation,  not  exceeding  ten  dollars  for  each  person. 

2  The  privilege  of  the  writ  of  Jiabeas  corpus  shall  not  be  sus- 
pended, unless  when  in  cases  of  rebellion  or  invasion  the  public 
safety  may  require  it. 

3  No  bill  of  attainder  or  ex  post  facto  law  shall  be  passed. 

4  No  capitation,  or  other  direct,  tax  shall  be  laid,  unless  in 
proportion  to  the  census  or  enumeration  hereinbefore  directed  to 
be  taken. 

5  No  tax  or  duty  shall  be  laid  on  articles  exported  from  any 
State. 

6  No  preference  shall  be  given  by  any  regulation  of  commerce 
or  revenue  to  the  ports  of  one  State  over  those  of  another:  nor 
shall  vessels  bound  to,  or  from,  one  State  be  obliged  to  enter, 
clear,  or  pay  duties  in  another. 

7  No  money  shall  be  drawn  from  the  treasury,  but  in  conse- 
quence of  appropriations  made  by  law ;  and  a  regular  statement 
and  account  of  the  receipts  and  expenditures  of  all  public  money 
shall  be  published  from  time  to  time. 

8  No  title  of  nobility  shall  be  granted  by  the  United  States: 
and  no  person  holding  any  office  of  profit  or  trust  under  them, 
shall,  without  the  consent  of  the  Congress,  accept  of  any  present, 
emolument,  office,  or  title,  of  any  kind  whatever,  from  any  king, 
prince  or  foreign  State. 


Constitution  of  the  United  States.  Ixxv 

Section  10.  1  Xo  State  shall  enter  into  any  treaty,  alliance, 
or  confederation;  grant  letters  of  marque  and  reprisal;  coin 
money;  emit  bills  of  credit;  make  anything  but  gold  and  silver 
coin  a  tender  in  payment  of  debts;  pass  any  bill  of  attainder, 
ex  post  facto  law,  or  law  impairing  the  obligation  of  contracts 
or  grant  any  title  of  nobility. 

2  Xo  State  shall,  without  the  consent  of  the  Congress,  lay  any 
imposts  or  duties  on  imports  or  exports,  except  what  may  be  abso- 
lutely necessary  for  executing  its  inspection  laws:  and  the  net 
produce  of  all  duties  and  imposts  laid  by  any  State  on  imports 
or  exports,  shall  be  for  the  use  of  the  treasury  of  the  United 
States ;  and  all  such  laws  shall  be  subject  to  the  revision  and 
control  of  the  Congress. 

•'!.  Xo  State  shall,  without  the  consent  of  Congress,  lay  any 
duty  of  tonnage,  keep  troops,  or  ships  of  war  in  time  of  peace, 
enter  into  any  agreement  or  compact  with  another  State,  or  with 
a  foreign  power,  or  engage  in  war,  unless  actually  invaded,  or 
in  such  imminent  danger  as  will  not  admit  of  delay. 

AKTICLE  II 

Section  1.  1  The  executive  power  shall  be  vested  in  a  Presi- 
dent of  the  United  States  of  America.  He  shall  hold  his  office 
during  the  term  of  four  years,  ami.  together  with  the  Vice  Presi- 
dent, chosen  for  the  same  term,  be  elected,  as  follows 

2  Each  State  shall  appoint,  in  such  manner  as  the  legislature 
thereof  may  direct,  a  number  of  electors,  equal  to  the  whole  num- 
ber of  senators  and  representatives  to  which  the  State  may  be 
entitled  in  the  Congress;  but  no  senator  or  representative,  or 
person  holding  an  office  of  trust  or  profit  under  the  United  States, 
shall  be  appointed  an  elector. 

The  electors  shall  meet  in  their  respective  States,  and  vote  by 
ballot  for  two  persons,  of  whom  one  at  least  shall  not  be  an  in- 
habitant of  the  same  State  with  themselves.  And  they  shall  make 
a  li-t  of  all  the  persona  voted  for,  and  of  the  number  of  votes 
for  each;  which  list  they  shall  sign  and  certify,  and  transmit 
sealed  to  the  scat  of  the  government  of  the  United  States,  directed 
to  the  president  of  the  Senate.  The  president  of  the  Senate  shall, 
in  the  presence  of  the  Senate  and  House  of  Representatives,  open 


lxxvi  Constitution  of  the  United  States. 

all  the  certificates,  and  the  votes  shall  then  be  counted.  The 
person  having  the  greatest  number  of  votes  shall  be  the  President, 
if  such  number  be  a  majority  of  the  whole  number  of  electors 
appointed;  and  if  there  be  more  than  one  who  have  such  majority, 
and  have  an  equal  number  of  votes,  then  the  House  of  representa- 
tives shall  immediately  choose  by  ballot  one  of  them  for  Presi- 
dent; and  if  no  person  have  a  majority,  then  from  the  five  highest 
on  the  list  the  said  house  shall  in  like  manner  choose  the  President. 
But  in  choosing  the  President,  the  votes  shall  be  taken  by 
States,  the  representation  from  each  State  having  one  vote;  a 
quorum  for  this  purpose  shall  consist  of  a  member  or  members 
from  two-thirds  of  the  States,  and  a  majority  of  all  the  States 
shall  be  necessary  to  a  choice.  In  every  case,  after  the  choice 
of  the  President,  the  person  having  the  greatest  number  of  votes 
of  the  electors  shall  be  Vice  President.  But  if  there  should  re- 
main two  or  more  who  have  equal  votes,  the  Senate  shall  choose 
from  them  by  ballot  the  Vice  President.1 

3  The  Congress  may  determine  the  time  of  choosing  the  elect- 
ors, and  the  day  on  which  they  shall  give  their  votes;  which  day 
shall  be  the  same  throughout  the  United  States. 

4  Xo  person  except  a  natural  born  citizen,  or  a  citizen  of  the 
United  States,  at  the  time  of  the  adoption  of  this  Constitution, 
shall  be  eligible  to  the  office  of  President;  neither  shall  any 
person  be  eligible  to  that  office  who  shall  not  have  attained  to  the 
age  of  thirty-five  years,  and  been  fourteen  years  a  resident  within 
the  United  States. 

5  In  case  of  the  removal  of  the  President  from  office,  or  of 
his  death,  resignation,  or  inability  to  discharge  the  powers  and 
duties  of  the  said  office,  the  same  shall  devolve  on  the  Vice  Presi- 
dent, and  the  Congress  may  by  law  provide  for  the  case  of  re- 
moval, death,  resignation,  or  inability,  both  of  the  President  and 
Vice  President,  declaring  what  officer  shall  then  act  as  President, 
and  such  officer  shall  act  accordingly,  udiiI  the  disability  be 
removed,  or  a  President  shall  be  elected. 

6  The  President  shall,  at  stated  times,  receive  for  his  services 
a  compensation,  which  shall  neither  be  increased  nor  diminished 
during  the  period  for  which  he  shall  have  been  elected,  and  he 

i  Superseded  by  the  12th  Amendment. 


Constitution  of  the  United  States.  lxxvii 

shall  not  receive  within  that  period  any  other  emolument  from 
the  United  States,  or  any  of  them. 

7  Before  he  enter  on  the  execution  of  his  office,  he  shall  take 
the  following  oath  or  affirmation :  —  "I  do  solemnly  swear  (or 
affirm)  that  I  will  faithfully  execute  the  office  of  President  of  the 
United  States,  and  will  to  the  best  of  my  ability,  preserve,  protect 
and  defend  the  Constitution  of  the  United  States." 

Section  2.  1  The  President  shall  be  commander  in  chief  of 
the  army  and  navy  of  the  United  States,  and  of  the  militia  of  the 
several  States,  when  called  into  the  actual  service  of  the  United 
States;  he  may  require  the  opinion,  in  writing,  of  the  principal 
officer  in  each  of  the  executive  departments,  upon  any  subject 
relating  to  the  duties  of  their  respective  offices,  and  he  shall  have 
power  to  grant  reprieves  and  pardons  for  offenses  against  the 
United  States,  except,  in  cases  of  impeachment. 

2  He  shall  have  power,  by  and  with  the  advice  and  consent  of 
the  Senate,  to  make  treaties, -provided  two  thirds  of  the  senators 
present  concur;  and  he  shall  nominate,  and  by  and  with  the 
advice  and  consent  of  the  Senate,  shall  appoint  ambassadors, 
other  public  ministers  and  consuls,  judges  of  the  Supreme  Court, 
and  all  other  officers  of  the  United  States,  whose  appointments 
are  not  herein  otherwise  provided  for,  and  which  shall  be  estab- 
lished by  law:  but  the  Congress  may  by  law  vest  the  appointment 
of  such  inferior  officers,  as  they  think  proper,  in  the  President 
alone,  in  the  courts  of  law,  or  in  the  heads  of  departments. 

3  The  President  shall  have  power  to  fill  up  all  vacancies  that 
may  happen  during  the  recess  of  the  Senate,  by  granting  commis- 
sions which  shall  expire  at  the  end  of  their  next  session. 

Section  3.  He  shall  from  time  to  time  give  to  the  Congress 
information  of  the  state  of  the  Union,  and  recommend  to  their 
consideration  such  measures  as  he  shall  judge  necessary  and  ex- 
pedient; he  may,  on  extraordinary  occasions,  convene  both 
Houses,  or  either  of  them,  and  in  case  of  disagreement  between 
them  with  respect  to  the  time  of  adjournment,  he  may  adjourn 
them  to  such  time  as  he  shall  think  proper;  he  shall  receive 
ambassadors  and  other  public  ministers ;  he  shall  take  care  that 
the  laws  be  faithfully  executed,  and  shall  commission  all  the 
officers  of  the  United  States. 


lxxviii  Constitution  of  the  United  States. 

Section  4.  The  President,  Vice  President,  and  all  civil  offi- 
cers of  the  United  States,  shall  be  removed  from  office  on  im- 
peachment for,  and  conviction  of,  treason,  bribery,  or  other  high 
crimes  and  misdemeanors. 

ARTICLE  III 

Section  1.  The  judicial  power  of  the  United  States  shall  be 
vested  in  one  Supreme  Court,  and  in  such  inferior  courts  as  the 
Congress  may  from  time  to  time  ordain  and  establish.  The 
judges,  both  of  the  Supreme  and  inferior  courts,  shall  hold  their 
offices  during  good  behavior,  and  shall,  at  stated  times,  receive 
for  their  services,  a  compensation  which  shall  not  be  diminished 
during  their  continuance  in  office. 

Section  2.  1  The  judicial  power  shall  extend  to  all  cases,  in 
law  and  equity,  arising  under  this  Constitution,  the  laws  of  the 
United  States,  and  treaties  made,  or  which  shall  be  made,  under 
their  authority ;  —  to  all  cases  affecting  ambassadors,  other  pub- 
lic ministers  and  consuls ;  —  to  all  cases  of  admiralty  and  mari- 
time jurisdiction ;  —  to  controversies  to  which  the  United  States 
shall  be  a  party;  —  to  controversies  between  two  or  more  States; 
—  between  a  State  and  citizens  of  another  State; — between 
citizens  of  different  States, —  between  citizens  of  the  same  State 
claiming  lands  under  grants  of  different  States,  and  between  a 
State,  or  the  citizens  thereof,  and  foreign  States,  citizens  or 
subjects. 

2  In  all  cases  affecting  ambassadors,  other  public  ministers 
and  consuls,  and  those  in  which  a  State  shall  be  party,  the 
Supreme  Court  shall  have  original  jurisdiction.  In  all  the  other 
cases  before  mentioned,  the  Supreme  Court  shall  have  appellate 
jurisdiction,  both  as  to  law  and  to  fact,  with  such  exceptions,  and 
under  such  regulations  as  the  Congress  shall  make. 

3  The  trial  of  all  crimes,  except  in  cases  of  impeachment,  shall 
be  by  jury;  and  such  trial  shall  be  held  in  the  State  where  the 
said  crimes  shall  have  been  committed ;  but  when  not  committed 
within  any  State,  the  trial  shall  be  at  such  place  or  places  as  the 
Congress  may  by  law  have  directed. 

Section  3.  1  Treason  against  the  United  States,  shall  eonsist 
only  in  levying  war  against  them,  or  in  adhering  to  their  enemies, 


Constitution  of  the  United  States.  lxxix 

giving  them  aid  and  comfort.  Xo  person  shall  be  convicted  of 
treason  unless  on  the  testimony  of  two  witnesses  to  the  same  overt 
act,  or  on  confession  in  open  court. 

2  The  Congress  shall  have  power  to  declare  the  punishment  of 
treason,  but  no  attainder  of  treason  shall  work  corruption  of 
blood,  or  forfeiture  except  during  the  life  of  the  person  attainted. 

ARTICLE  IV 

Section  1.  Full  faith  and  credit  shall  be  given  in  each  State 
to  the  public  acts,  records,  and  judicial  proceedings  of  every  other 
State.  And  the  Congress  may  by  general  laws  prescribe  the  man- 
ner in  which  such  acts,  records  and  proceedings  shall  be  proved, 
and  the  effect  thereof. 

Section  2.  1  The  citizens  of  each  State  shall  be  entitled  to 
all  privileges  and  immunities  of  citizens  in  the  several  States. 

2  A  person  charged  in  any  State  with  treason,  felony,  or  other 
crime,  who  shall  flee  from  justice,  and  be  found  in  another  State, 
shall  on  demand  of  the  executive  authority  of  the  State  from 
which  he  fled,  be  delivered  up  to  be  removed  to  the  State  having 
jurisdiction  of  the  crime. 

'■)  Xo  person  held  to  service  or  labor  in  one  State,  under  the 
laws  thereof,  escaping  into  another,  shallj  in  consequence  of  any 
law  or  regulation  therein,  be  discharged  from  such  service  or 
labor,  but  shall  be  delivered  up  on  claim  of  the  party  to  whom 
such  service  or  labor  may  be  due. 

Section  3.  1  Xew  States  may  be  admitted  by  the  Congress 
into  this  Union ;  but  no  new  State  shall  be  formed  or  erected 
within  the  jurisdiction  of  any  other  State;  nor  any  State  be 
formed  by  the  junction  of  two  or  more  States,  or  parts  of  States, 
without  the  consent  of  the  legislatures  of  the  States  concerned  as 
well  as  of  the  Congr< 

2  The  Congress  .-hull  have  power  to  dispose  of  and  make  all 
needful  rules  and  regulations  respecting  the  territory  or  other 
property  belonging  to  the  United  States;  and  nothing  in  this 
Constitution  shall  be  so  construed  as  to  prejudice  any  claims  of 
the  United  State-,  or  of  any  particular  State. 

i  io\  4.     The  United  States  shall  guarantee  tegevery  Stale 
in  this  Union  a  republican  form  of  government,  and  dial]  protect 


lxxx  Constitution  of  the  United  States. 

each  of  them  against  invasion;  and  on  application  of  the  legisla- 
ture, or  of  the  executive  (when  the  legislature  cannot  be  convened) 
against  domestic  violence. 


ARTICLE  V 

The  Congress,  whenever  two  thirds  of  both  Houses  shall  deem 
it  necessary,  shall  propose  amendments  to  this  Constitution,  or, 
on  the  application  of  the  legislatures  of  two  thirds  of  the  several 
States,  shall  call  a  convention  for  proposing  amendments,  which, 
in  either  case,  shall  be  valid  to  all  intents  and  purposes,  as  part 
of  this  Constitution,  when  ratified  by  the  legislatures  of  three 
fourths  of  the  several  States,  or  by  conventions  in  three  fourths 
thereof,  as  the  one  or  the  other  mode  of  ratification  may  be  pro- 
posed by  the  Congress;  Provided  that  no  amendment  which  may 
be  made  prior  to  the  year  one  thousand  eight  hundred  and  eight 
shall  in  any  manner  affect  the  first  and  fourth  clauses  in  the  ninth 
section  of  the  first  article;  and  that  no  State,  without  its  consent, 
shall  be  deprived  of  its  equal  suffrage  in  the  Senate. 


ARTICLE  VI 

1  All  debts  contracted  and  engagements  entered  into,  before  the 
adoption  of  this  Constitution,  shall  be  as  valid  against  the  United 
States  under  this  Constitution,  as  under  the  Confederation. 

2  This  Constitution,  and  the  laws  of  the  United  States  which 
shall  be  made  in  pursuance  thereof;  and  all  treaties  made,  or 
which  shall  be  made,  under  the  authority  of  the  United  States, 
shall  be  the  supreme  law  of  the  land;  and  the  judges  in  every 
State  shall  be  bound  thereby,  anything  in  the  Constitution  or  laws 
of  any  State  to  the  contrary  notwithstanding. 

3  The  senators  and  representatives  before  mentioned,  and  the 
members  of  the  several  State  legislatures,  and  all  executive  ard 
judicial  officers,  both  of  the  United  States,  and  of  the  several 
States,  shall  be  bound  by  oath  or  affirmation  to  support  this  Con- 
stitution; but  no  religious  test  shall  ever  be  required  as  a  qualifi- 
cation to  any  office  or  public  trust  under  the  United  States. 


Constitution  of  the  United  States.  lxxxi 

ARTICLE  VII 

The  ratification  of  the  conventions  of  nine  States  shall  be 
sufficient  for  the  establishment  of  this  Constitution  between  the 
States  so  ratifying  the  same. 

Articles  in  addition  to,  and  amendment  of,  the  Constitution  of 
the  United  States  of  America,  proposed  by  Congress,  and 
ratified  by  the  legislatures  of  the  several  States  pursuant  to  the 
fifth  article  of  the  original  Constitution. 

ARTICLE  I1 

Congress  shall  make  no  law  respecting  an  establishment  of 
religion,  or  prohibiting  the  free  exercise  thereof;  or  abridging  the 
freedom  of  speech,  or  of  the  press ;  or  the  right  of  the  people  peace- 
ably to  assemble,  and  to  petition  the  government  for  a  redress  of 
grievances. 

ARTICLE  II 

A  well  regulated  militia,  being  necessary  to  the  security  of  a 
free  State,  the  right  of  the  people  to  keep  and  bear  arms,  shall 
not  be  infringed. 

ARTICLE  III 

No  soldier  shall,  in  time  of  peace  be  quartered  in  any  house, 
without  the  consent  of  the  owner,  nor  in  time  of  war,  but  in  a 
manner  to  be  prescribed  by  law. 
i 

ARTICLE  IV 

The  right  of  the  people  to  be  secure  in  their  persons,  houses, 
papers,  and  effects,  against  unreasonable  searches  and  seizures, 
shall  not  be  violated,  and  no  warrants  shall  issue,  but  upon  prob- 
able cause,  supported  by  oath  or  affirmation,  and  particularly 
describing  the  place  to  be  searched,  and  the  persons  or  things 
to  be  seized. 

ARTICLE  V 

No  person  shall  be  held  to  answer  for  a  capital,  or  otherwise 
infamous  crime,  unless  on  a  presentment  or  indictment  of  a  grand 

i  The  first  ten  Amendments  were  adopted   in    1791. 
VI 


lxxxii  Constitution  of  the  United  States. 

jury,  except  in  cases  arising  in  the  land  or  naval  forces,  or  in  the 
militia,  when  in  actual  service  in  time  of  war  or  public  danger ; 
nor  shall  any  person  be  subject  for  the  same  offense  to  be  twice 
put  in  jeopardy  of  life  or  limb;  nor  shall  be  compelled  in  any 
criminal  case  to  be  a  witness  against  himself,  nor  be  deprived  of 
life,  liberty,  or  property,  without  due  process  of  law ;  nor  shall 
private  property  be  taken  for  public  use  without  just  compensation. 

AETICLE  VI 
In  all  criminal  prosecutions,  the  accused  shall  enjoy  the  right 
to  a  speedy  and  public  trial,  by  an  impartial  jury  of  the  State 
and  district  wherein  the  crime  shall  have  been  committed,  which 
district  shall  have  been  previously  ascertained  by  law,  and  to  be 
informed  of  the  nature  and  cause  of  the  accusation;  to  be  con- 
fronted with  the  witnesses  against  him  ;  to  have  compulsory  process 
for  obtaining  witnesses  in  his  favor,  and  to  have  the  assistance  of 
counsel  for  his  defense. 

AETICLE  VII ' 

In  suits  at  common  law,  where  the  value  in  controversy  shall 
exceed  twenty  dollars,  the  right  of  trial  by  jnry  shall  be  preserved, 
and  no  fact  tried  by  a  jury  shall  be  otherwise  reexamined  in  any 
court  of  the  United  States,  than  according  to  the  rules  of  the 
common  law. 

ARTICLE  VIII 

i 

Excessive  bail  shall  not  be  required,  nor  excessive  fines  imposed, 
nor  cruel  and  unusual  punishments  inflicted. 

AETICLE  IX 

The  enumeration  in  the  Constitution  of  certain  rights  shall  not 
be  construed  to  deny  or  disparage  others  retained  by  the  people. 

AETICLE  X 

The  powers  not  delegated  to  the  United  States  by  the  Constitu- 
tion, nor  prohibited  by  it  to  the  States,  are  reserved  to  the  States 
respectively,  or  to  the  people. 


COXSTITUTIOX    OF    THE    UNITED    STATES.  lxxxiii 

ARTICLE  XI1 

The  judicial  power  of  the  United  States  shall  not  be  construed 
to  extend  to  any  suit  in  law  or  equity,  commenced  or  prosecuted 
against  one  of  the  United  States  by  citizens  of  another  State,  or 
by  citizens  or  subjects  of  any  foreign  State. 

ARTICLE  XII2 

The  electors  shall  meet  in  their  respective  States,  and  vote  by 
ballot  for  President  and  Vice  President,  one  of  whom,  at  least, 
shall  not  be  an  inhabitant  of  the  same  State  with  themselves; 
they  shall  name  in  their  ballots  the  person  voted  for  as  President, 
and  in  distinct  ballots  the  person  voted  for  as  Vice  President,  and 
they  shall  make  distinct  lists  of  all  persons  voted  for  as  President 
and  of  all  persons  voted  for  as  Vice  President,  and  of  the  number 
of  votes  for  each,  which  lists  they  shall  sign  and  certify,  and 
transmit  sealed  to  the  seat  of  the  government  of  the  L'nited  States, 
directed  to  the  president  of  the  Senate; — The  president  of  the 
Senate  shall,  in  presence  of  the  Senate  and  House  of  Representa- 
tives, open  all  the  certificates  and  the  votes  shall  then  be  counted ; — 
The  person  having  the  greatest  number  of  votes  for  President 
shall  be  the  President,  if  such  number  be  a  majority  of  the  whole 
number  of  electors  appointed  ;  and  if  no  person  have  such  majority, 
then  from  the  persons  having  the  highest  numbers  not  exceeding- 
three  on  the  list  of  those  voted  for  as  President,  the  House  of 
Representatives  shall  choose  immediately,  by  ballot,  the  President. 
But  in  choosing  the  President,  the  votes  shall  be  taken  by  States, 
the  representation  from  each  State  having  one  vote ;  a  quorum  for 
this  purpose  shall  consist  of  a  member  or  members  from  two 
thirds  of  the  States,  and  a  majority  of  all  the  States  shall  be 
necessary  to  a  choice.  And  if  the  House  of  Representatives  shall 
not  choose  a  President  whenever  the  right  of  choice  shall  devolve 
upon  them,  before  the  fourth  day  of  March,  next  following,  then 
the  Vice  President  shall  act  as  President,  as  in  the  case  of  the 
death  or  other  constitutional  disability  of  the  President.  The 
person  having  the  greatest  number  of  votes  as  Vice  President  shall 

be  the  Vice  President,  if  such  number  be  a  majority  of  the  whole 

. _ 1 

i  Adopted    in    1798.  2  Adopted   in    1804. 


ixxxiv  CONSTITUTION   OF   THE   UNITED   STATES. 

number  of  electors  appointed,  and  if  no  person  have  a  majority, 
then  from  the  two  highest  numbers  on  the  list,  the  Senate  shall 
choose  the  Vice  President ;  a  quorum  for  the  purpose  shall  consist 
of  two  thirds  of  the  whole  number  of  senators,  and  a  majority  of 
the  whole  number  shall  be  necessary  to  a  choice.  But  no  person 
constitutionally  ineligible  to  the  office  of  President  shall  be  eligible 
to  that  of  Vice  President  of  the  United  States. 

ARTICLE  XIII1 
Section  1.     1  Neither  slavery  nor  involuntary  servitude,  ex* 
cept  as  punishment  for  crime  whereof  the  party  shall  have  been 
duly  convicted,  shall  exist  within  the  United  States,  or  any  place 
subject  to  their  jurisdiction. 

2  Congress  shall  have  power  to  enforce  this  article  by  appro- 
priate legislation. 

ARTICLE  XIV2 

1  All  persons  born  or  naturalized  in  the  United  States,  and 
subject  to  the  jurisdiction  thereof,  are  citizens  of  the  United  States 
and  of  the  State  wherein  they  reside.  Xo  State  shall  make  or 
enforce  any  law  which  shall  abridge  the  privileges  or  immunities 
of  citizens  of  the  United  States;  nor  shall  any  State  deprive  any 
person  of  life,  liberty,  or  property,  without  due  process  of  law; 
nor  deny  to  any  person  within  its  jurisdiction  the  equal  protec- 
tion of  the  laws. 

2  Representatives  shall  be  apportioned  among  the  several  States 
according  to  their  respective  numbers,  counting  the  whole  number 
of  persons  in  each  State,  excluding  Indians  not  taxed.  But  when 
the  right  to  vote  at  any  election  for  the  choice  of  electors  for 
President  and  Vice  President  of  the  United  States,  representations 
in  Congress,  the  executive  and  judicial  officers  of  a  State,  or  the 
members  of  the  legislature  thereof,  is  denied  to  any  of  the  male 
inhabitants  of  such  State,  being  twenty-one  years  of  age,  and 
citizens  of  the  United  States,  or  in  any  way  abridged,  except  for 
participation  in  rebellion,  or  other  crime,  the  basis  of  representa- 
tion therein  shall  be  reduced  in  the  proportion  which  the  number 
of  such  male  citizens  shall  bear  to  the  whole  number  of  male 
citizens  twenty-one  years  of  age  in  such  State. 

i  Adopted  in    1865.  ?  4£onted  in    1868. 


Constitution  of  the  United  States.  lxxxv 

3  ~So  person  shall  be  a  senator  or  representative  in  Congress,  or 
elector  of  President  and  Vice  President,  or  hold  any  office,  civil 
or  military,  under  the  United  States,  or  under  any  State,  who, 
having  previously  taken  an  oath,  as  a  member  of  Congress,  or  as 
an  officer  of  the  United  States,  or  as  a  member  of  any  State  legis- 
lature, or  as  an  executive  or  judicial  officer  of  any  State,  to  sup- 
port the  Constitution  of  the  United  States,  shall  have  engaged  in 
insurrection  or  rebellion  against  the  same,  or  given  aid  or  comfort 
to  the  enemies  thereof.  But  Congress  may  by  a  vote  of  two  thirds 
of  each  House,  remove  such  disability. 

4  The  validity  of  the  public  debt  of  the  United  States,  author- 
ized by  law,  including  debts  incurred  for  payment  of  pensions 
and  bounties  for  services  in  suppressing  insurrection  or  rebellion, 
shall  not  be  questioned.  But  neither  the  United  States  nor  any 
State  shall  assume  or  pay  any  debt  or  obligation  incurred  in  aid 
of  insurrection  or  rebellion  against  the  United  States,  or  any 
claim  for  the  loss  or  emancipation  of  any  slave ;  but  all  such  debts, 
obligations  and  claims  shall  be  held  illegal  and  void. 

5  The  Congress  shall  have  power  to  enforce,  by  appropriate 
legislation,  the  provisions  of  this  article. 

• 
ARTICLE  XV1 

Section  1.  The  right  of  citizens  of  the  United  States  to  vote 
shall  not  be  denied  or  abridged  by  the  United  States  or  by  any 
State  on  account  of  race,  color,  or  previous  condition  of  servitude. 

Section  2.  The  Congress  shall  have  power  to  enforce  this 
article  by  appropriate  legislation. 

l  Adopted  in   1870. 


UNITED  STATES  CONSTITUTIONAL  LAW. 


CHAPTER  I. 

THE   SUPREMACY  OF  THE   UNITED   STATES  CONSTITUTION. 

The  fundamental  principle  of  American  constitutional  juris- 
prudence is  that  laws  and  not  men  shall  govern.  This  means  that 
when  a  power,  exercised  by  an  official  or  by  a  governmental  organ, 
is  challenged  legal  authority  therefor  derived  from  some  existing 
law  must  be  shown,  and  that  no  valid  law  can  exist  save  that  which 
is  recognized  as  such  by  the  courts.  The  courts  recognize  two 
great  bodies  of  law ;  the  so-called  common  law,  which  is  a  product 
of  custom  and  judicial  interpretation,  which  in  large  measure  we 
have  inherited  from  England;  and  enacted  law,  which  is  the 
formal  creation  of  the  legislative  organs  of  government.  This 
formally  enacted  law  is  of  two  kinds:  That  embodied  in  written 
constitutions,  and  that  enacted  by  the  ordinary  legislative  bodies 
and  termed  statutes. 

Independently  of  express  statement  to  that  effect,  it  has  become 
axiomatic  that  no  statute  law  is  valid  if  not  consistent  with  the 
provisions  of  the  Constitution  from  which  the  enacting  legislature 
derives  its  powers.  A  state  statute  inconsistent  with  the  Con- 
stitution of  that  state  is,  therefore,  invalid,  and  an  act  of  Con- 
gress not  warranted  by  the  provisions  of  the  federal  Constitution 
is  similarly  void.  And  the  same  legal  invalidity  of  course  attaches 
to  the  unconstitutional  act  of  an  executive  or  judicial  organ  of 
government.  In  addition  to  being  subordinate  to  the  provisions  of 
the  state  Constitution,  every  act  of  the  state  official  or  organ  is 
required  to  conform  to  the  requirements  of  the  federal  Constitu- 
tion, and  this  applies  as  well  to  the  provisions  of  a  state  Constitu- 
tion, as  to  the  statutes  of  its  legislature. 


2  United  States  Constitutional  Law. 

Elsewhere  we  shall  have  occasion  to  deal  with  the  constitu* 
tional  tests  to  be  applied  to  executive  and  judicial  acts.  In  this 
chapter  we  are  concerned  with  the  relation  between  statute  and 
constitutional  law. 

§  1.  The  Courts  and  Unconstitutional  Laws. 

The  principle  that  statutory  law,  in  order  to  be  valid,  must  be 
in  conformity  with  constitutional  requirements,  is  a  product  of 
American  jurisprudence,  and  peculiar  to  it.  That  the  acts  of  the 
legislatures  of  subordinate  political  units  must  agree  with  the 
conditions  and  recognize  the  limits  laid  down  by  the  superior 
sovereign  power  is  of  course  not  peculiar  to  the  United  States; 
but  that  the  legislative  acts  of  the  highest  legislative  body  itself 
are  void  if  not  warranted  by  the  Constitution  under  which  that 
body  is  organized,  is  nowhere  else  admitted, —  neither  in  Eng- 
land, wThich  is  without  a  written  Constitution,  nor  in  any  other 
Continental  country  which  has  one. 

§  2.  Marbury  v.  Madison. 

The  acceptance  of  this  principle  in  the  United  States  may  be 
dated  from  the  decision  by  the  Supreme  Court  in  1803  of  the 
case  of  Marbury  v.  Madison.1  This  point  is  of  such  transcendent 
importance  that  the  argument  of  Marshall  wall  be  given  in 
extenso. 

"  The  question  whether  an  act,  repugnant  to  the  Constitution, 
can  become  the  law  of  the  land,"  says  the  great  Chief  Justice,  "  is 
a  question  deeply  interesting  to  the  United  States;  but,  happily, 
not  of  an  intricacy  proportioned  to  its  interest.  It  seems  only 
necessary  to  recognize  certain  principles,  supposed  to  have  been 
long  and  well  established,  to  decide  it.  That  the  people  have  an 
original  right  to  establish,  for  their  future  government,  such 
principles,  as,  in  their  opinion,  shall  most  conduce  to  their  own 
happiness  is  the  basis  on  which  the  whole  American  fabric  has 
been  erected.  The  exercise  of  this  original  right  is  a  very  great 
exertion ;  nor  can  it,  nor  ought  it,  to  be  frequently  repeated.     The 

11  Cr.  137;  2  L.  ed.  60. 


Supremacy  of  the  United  States  Constitution.         3 

principles,  therefore,  so  established,  are  deemed  fundamental. 
And  as  the  authority  from  which  they  proceed  is  supreme,  and 
can  seldom  act,  they  are  designed  to  be  permanent.  This  original 
and  supreme  will  organizes  the  government,  and  assigns  to  dif- 
ferent departments  their  respective  powers.  It  may  either  stop 
here,  or  establish  certain  limits  not  to  be  transcended  by  those 
departments.  The  government  of  the  United  States  is  of  the  lat- 
ter description.  The  powers  of  the  legislature  are  defined  and 
limited ;  and  that  those  limits  may  not  be  mistaken,  or  forgotten, 
the  Constitution  is  written.  .  .  .  It  is  a  proposition  too  plain  to 
be  contested,  that  the  Constitution  controls  any  legislative  act  re- 
pugnant to  it;  or,  that  the  legislature  may  alter  the  Constitution 
by  an  ordinary  act.  Between  these  alternatives  there  is  no  middle 
ground.  The  Constitution  is  either  a  supreme  paramount  law,  un- 
changeable by  ordinary  means,  or  it  is  on  a  level  with  ordinary  leg- 
islative acts,  and,  like  other  acts,  is  alterable  when  the  legislature 
shall  please  to  alter  it.     .     .  Certainly  all  those  who  have 

framed  written  constitutions  contemplate  them  as  forming  the  fun- 
damental and  paramount  law  of  the  nation,  and,  consequently,  the 
theory  of  every  such  government  must  be  that  an  act  of  the  leg- 
islature repugnant  to  the  Constitution  is  void.  ...  If  an 
act  of  the  legislature  repugnant  to  the  Constitution  is  void,  does 
it,  notwithstanding  its  invalidity,  bind  the  courts  and  oblige  them 
to  give  it  effect  ?  ...  It  is  emphatically  the  province  and 
duly  of  the  judicial  department  to  say  what  the  law  is.  .  .  . 
So  if  a  law  be  in  opposition  to  the  Constitution;  if  both  the  law 
and  the  Constitution  apply  to  a  particular  case,  so  that  the  court 
must  either  decide  that  case  conformably  to  the  law,  disregarding 
the  Constitution ;  or  conformably  to  the  Constitution,  disregard- 
ing the  law;  the  court  must  determine  which  of  these  conflicting 
rules  governs  the  case.  This  is  of  the  very  essence  of  judicial 
duty.  If.  then,  the  courts  are  to  regard  the  Constitution,  and  the 
Constitution  is  superior  to  any  ordinary  act  of  the  legislature, 
the  Constitution,  and  not  such  ordinary  act,  must  govern  the  case 
to  which  they  both  apply." 

The  reasoning  of  Webster  and  Kent  as  to  the  invalidity  of 


4  United  States  Constitutional  Law. 

legislative  arts  contrary  to  the  Constitution,  and  as  to  the  power 
of  the  court  to  declare  them  such,  is  substantially  the  same  as 
that  of  Marshall.2 

§  3.  Criticism. 

The  force  of  tht  reasoning  of  Marshall,  Webster  and  Kent  may 
in  some  respects  Ix  questioned,  or  at  least  added  to. 

That  organ  or  body  which  has  the  final  power  to  interpret  the 
Constitution  has  necessarily  the  power  to  give  to  that  in- 
strument what  meaning  it  will.  It  thus  becomes,  in  a  sense, 
supreme  over  all  the  other  organs  of  government.  Unless,  there- 
fore, the  body  from  whose  action  the  Constitution  itself  derived 
its  force  is  to  be  resorted  to  in  every  case  of  doubtful  construction 
(and  this,  of  course,  is  impracticable)  the  only  alternative  is  to 
delegate  this  supreme  power  to  some  one  of  the  permanent  organs 
of  government.  But  it  does  not  necessarily  follow,  as  the  reason- 
ing of  Marshall,  Webster  and  Kent  would  seem  to  indicate,  that, 
as  an  abstract  proposition,  this  power  must  always  be  possessed  by 
the  judiciary.  Indeed,  in  all  other  countries  except  the  United 
States,  this  power  is  vested  in  the  legislature.  These  other  writ- 
ten constitutions  did  not,  indeed,  exist  at  the  time  that  Marshall 
rendered  his  opinion,  but  their  present  existence  shows  that  under 
a  written  instrument  of  government  it  does  not  necessarily  follow 
that  the  courts  should  have  a  power  to  hold  void  legislative  acts 
contrary  to  its  provisions. 

If,  then,  the  possession  of  this  power  by  American  courts  is 
to  be  established,  it  must  be  by  a  resort  either  to  the  words  of 

2  Webster  declares :  "  The  Constitution  being  the  supreme  law,  it  follows 
of  course,  that  every  act  of  the  legislature  contrary  to  the  law  must  be  void. 
But  who  shall  decide  this  question?  Shall  the  legislature  itself  decide  it? 
If  so,  then  the  Constitution  ceases  to  be  a  legal  and  becomes  only  a  moral 
restraint  on  the  legislature.  If  they,  and  they  only,  are  to  judge,  whether 
their  acts  be  conformable  to  the  Constitution,  then  the  Constitution  is  admoni- 
tory or  advisory  only,  not  legally  binding;  because,  if  the  construction  of 
it  Test  wholly  with  them,  their  discretion,  in  particular  cases,  may  be  in 
favor  of  very  erroneous  and  dangerous  constructions.  Henee  the  courts  of  law, 
necessarily,  when  the  case  arises,  must  decide  upon  the  validity  of  particular 
acts."     Webster,  Works,  Vol.  Ill,  30. 


Supremacy  of  the  United  States  Constitution.         5 

the  Constitution  itself;  or,  if  these  be  not  explicit,  to  the  general 
intention  of  the  framers  and  adopters  of  the  Constitution,  so  far 
as  this  intention  may  be  deduced  from  the  general  nature  of  the 
government  sought  to  be  established,  from  the  records  preserved 
of  the  conventions  in  which  the  instrument  was  framed  and 
adopted,  and  from  the  precedents  drawn  from  colonial  practice, 
if  any  such  are  to  be  found.  We  are  not  here  concerned,  it  is  to 
be  repeated,  with  the  question  whether  the  federal  judiciary 
should  have  the  power  to  hold  void  such  acts  of  the  state  legis- 
latures as  might  contravene  the  provisions  of  the  federal  Con- 
stitution. This  is  a  distinct  question  and  is  considered  in  its 
proper  place.  We  have  here  to  deal  with  the  power  of  the  federal 
courts  to  refuse  to  recognize  the  validity  of  such  acts  of  the 
Xational  Legislature  as  it  may  consider  unconstitutional,  and  of 
state  tribunals  to  hold  void  acts  of  their  state  legislatures  because 
contrary  to  their  respective  state  Constitutions. 

As  regards  state  precedents  prior  to  the  adoption  of  the  federal 
Constitution  it  may  be  said  that  there  are  scarcely  to  be  found  a 
sufficient  number  to  warrant  one  in  saying  that  the  doctrine  had 

Kent,  in  his  Commentaries,  says:  ''The  Constitution  is  the  act  of  the 
people,  speaking  in  their  original  character,  and  defining  the  permanent 
conditions  of  the  social  alliance;  and  there  can  be  no  doubt  on  the  point 
with  us,  that  every  act  of  the  legislative  power  contrary  to  the  true  intent 
and  meaning  of  the  Constitution,  is  absolutely  null  and  void.  Tlie  judicial 
department  is  the  proper  power  in  the  government  to  determine  whether  a 
statute  be  or  be  not  constitutional.  The  interpretation  or  construction  of  the 
Constitution  is  as  much  a  judicial  act,  and  requires  the  exercise  of  the  same 
legal  discretion,  as  the  interpretation  or  construction  of  a  law.  To  contend 
that  the  courts  cf  justice  must  obey  the  requisitions  of  an  act  of  the  legis- 
lature when  it  appears  to  them  to  have  been  passed  in  violation  of  the 
Constitution,  would  be  to  contend  that  the  law  was  superior  to  the  Constitu- 
tion, and  that  the  judges  had  no  right  to  lock  into  it.  and  regard  it  as  a 
]iaramounb  law.  It  would  be  rendering  the  power  of  the  agent  greater  than 
that  of  his  principal  and  be  declaring  that  the  will  of  only  one1  concurrent 
and  co-ordinate  department  of  the  subordinate  authorities  under  the  Consti- 
tution was  absolute  over  the  other  departments,  and  competent  to  control, 
according  to  it~  own  will  and  pleasure,  the  whole  fabric  of  the  government, 
and  the  fundamental  laws  on  which  it  rested.  The  attempt  to  impose  re- 
straints upon  the  exercise  of  the  legislative  power  would  be  fruitless,  if  the 
constitutional  provisions  were  left  without  any  power  in  the  government  to 
guard  and  enforce  them."     Chapter  XX. 


6  United  States  Constitutional  Law. 

become  an  established  one  in  America  in  1787,  and  therefore  to 
be  presumed  to  have  been  held  by  the  f ramers  and  adopters  of  the 
federal  Constitution.  Still  there  had  been  a  few  instances  in 
which,  prior  to  1789,  the  courts  had  held  void  acts  of  their  respec- 
tive legislatures,  though  not  without  incurring  more  or  less 
animadversion  for  so  doing. 

Whatever  may  be  the  evidence  of  prior  state  or  colonial 
practice,  it  appears  quite  plainly  from  the  proceedings  of  the  con- 
stitutional convention,  as  well  as  from  the  words  of  the  Constitu- 
tion itself,  that  it  was  intended  that  the  courts  should  have  the 
power  of  disregarding  unconstitutional  legislative  acts.  The 
greatest  solicitude  was  constantly  expressed  that  the  national  legis- 
lative power  should  be  prevented  from  encroaching  upon  the  pow- 
ers of  the  other  departments  of  government,  and  a  great  variety 
of  schemes  for  preventing  this  were  discussed.  In  addition  to 
the  qualified  presidential  veto  which  was  finally  adopted,  it  was 
expressly  provided  that  the  Constitution  and  the  laws  of  the 
United  States  made  in  pursuance  thereof  should  be  the  supreme 
law  of  the  land,  and  that  the  federal  judicial  power  should  extend 
to  "  all  cases,  in  law  and  equity,  arising  under  the  Constitution." 
From  this  would  clearly  appear  an  intention  that  the  courts  should 
have  the  power  to  consider  the  constitutionality  of  legislative  acts. 

Marshall  in  his  opinion  in  Marbury  v.  Madison  adverts  to 
this,  but  does  not,  as  he  should  have  done,  make  it  the  foundation 
of  his  argument.  He  says:  "  The  judicial  power  of  the  United 
States  is  extended  to  all  cases  arising  under  the  Constitution. 
Could  it  be  the  intention  of  those  who  gave  this  power,  to  say  that 
in  using  it  the  Constitution  should  not  be  looked  into?  That  a 
case  arising  under  the  Constitution  should  be  decided  without  ex- 
amining the  instrument  under  which  it  arises?  This  is  too  ex- 
travagant to  be  maintained."  After  quoting  certain  prohibitions 
of  the  Constitution  upon  legislative  action,  Marshall  continues: 
"  From  these  and  many  other  selections  which  might  be  made, 
it  is  apparent  that  the  framers  of  the  Constitution  contemplated 
that  instrument  as  a  rule  for  the  government  of  courts,  as  well  as 
©f  the  legislature.     Why  otherwise  does  it  direct  the  judges  to 


Supremacy  of  the  United  States  Constitution. 


take  an  oath  to  support  it  ?  .  .  .  It  is  also  not  entirely  un- 
worthy of  observation  that  in  declaring  what  shall  be  the  supreme 
law  of  the  land,  the  Constitution  itself  is  first  mentioned;  and 
not  the  laws  of  the  United  States  generally,  but  those  only  which 
shall  be  made  in  pursuance  of  the  Constitution,  have  that  rank. 
Thus  the  particular  phraseology  of  the  Constitution  of  the  United 
States  confirms  and  strengthens  the  principle,  supposed  to  be 
essential  to  all  written  Constitutions,  that  a  law  repugnant  to 
the  Constitution  is  void;  and  that  courts,  as  well  as  other  de- 
partments, are  bound  by  that  instrument." 

This  last  paragraph  clearly  exhibits  the  sequence  of  the  argu- 
ment in  Marshall's  mind.  First  is  stated  the  abstract  principle, 
necessarily  bound  up  with  the  idea  of  a  written  fundamental  in- 
strument of  government,  that  the  constitutionality  of  a  legislative 
act  may  be  questioned  by  the  courts.  Then  the  validity  of  this 
principle  is  supported  by  the  express  provisions  of  the  Constitu- 
tion itself.  This  first  observed  principle  we  have  seen  to  be  not  a 
necessary  one.  The  entire  argument  should  therefore  have  been 
thrown  upon  the  provisions  of  the  Constitution  itself  interpreted 
in  the  light  of  the  intentions  of  its  framers  so  far  as  these  inten- 
tions are  discoverable  from  the  debates  in  the  federal  constitu- 
tional convention  and  the  state  ratifying  conventions.3 

§  4.  The  Expediency  of  This  Judicial  Power. 

As  regards  the  expediency  of  granting  to  the  courts  rather  than 
to  the  legislature  itself  the  final  power  of  construing  the  Con- 

3  It  is  generally  stated  that  the  power  of  the  courts  to  declare  void  uncon- 
stitutional laws  is  an  implied  one  and  not  an  expressly  granted  power. 
Mr.  J5rinton  Coxe,  however,  in  his  interesting  work,  Judicial  Power  and 
Unconstitutional  Legislation,  argues  that  the  power  is  expressly  given  in  the 
clauses  which  have  been  quoted  in  the  text, —  not  expressly  in  the  sense  of 
being  unequivocally  stated  in  so  many  words,  but  as  being  necessarily  intended 
by  the  wardl  used,  and  not  implied  as  a  means  of  rendering  effective  some 
other  expressly  granted  power.  In  other  words,  he  says  in  effect,  that  the 
power  is  expressly  given  even  though  a  careful  examination  of  the  text  is 
required  to  determine  the  fact.  To  the  author,  however,  it  seems  more  satis- 
factory to  hold  the  power  an  implied  one  —  implied  from  the  express  authority 
given  to  the  federal  courts  to  adjudicate  all  cases  arising  under  the  Constitu- 
tion which  is  declared  to  be  the  supreme  law  of  the  land. 


8  United  States  Constitutional  Law. 

stitution  there  would  seem  to  be  little  doubt,  though  there  are 
indeed  some  who  still  question  it.4 

That  it  was  the  possible  absorption  of  undue  powers  by  the 
legislature  which  the  constitutional  fathers  expressly  feared,  there 
is  abundant  evidence  in  the  records  of  their  views  which  have 
been  preserved.  The  following  is  but  one  of  many  similar  quota- 
tions that  might  be  made.  In  the  Federalist?  Madison  writes: 
u  In  a  government  where  numerous  and  extensive  prerogatives  are 
placed  in  the  hands  of  an  hereditary  monarch,  the  executive  de- 
partment is  very  justly  regarded  as  the  source  of  danger  and 
watched  with  all  the  jealousy  which  a  zeal  for  liberty  ought  to 
inspire.  .  .  .  But  in  a  representative  republic,  where  the 
executive  magistracy  is  limited  both  in  the  extent  and  the  dura- 
tion of  its  power ;  and  where  the  legislative  power  is  exercised  by 
an  assembly  which  is  inspired  by  a  supposed  influence  over  the 
people,  with  an  intrepid  confidence  in  its  own  strength,  which  is 

*  See  for  example  American  Laic  Review,  XL,  356,  article  entitled  "The 
Great  Usurpation,"  and  North  American  Review,  August  16,  1907,  article 
entitled  "  Judicial  Nullification  of  Acts  of  Congress." 

5  No.  XLVI1L 

The  argument,  upon  grounds  of  expediency,  for  giving  the  power  to  the 
courts  is  stated  by  Webster  and  Kent  as  follows:  Webster  says:  "  It  cannot 
be  denied  that  one  great  object  of  written  constitutions  is  to  keep  the 
departments  of  government  as  distinct  as  possible;  and  for  this  purpose  to 
impose  restraints  designed  to  have  that  effect.  And  it  is  equally  true,  that 
there  is  no  department  on  which  it  is  more  necessary  to  impose  restraints 
than  the  legislative.  The  tendency  of  things  is  almost  always  to  augment  the 
power  of  that  department  in  its  relation  to  the  judiciary.  The  judiciary 
is  composed  of  few  persons,  and  those  not  such  as  mix  habitually  in  the 
pursuits  and  objects  which  most  engage  public  men.  They  are  not,  or  never 
should  be,  political  men.  They  have  often  unpleasant  duties  to  perform, 
and  their  conduct  is  often  liable  to  be  canvassed  and  censured,  where  their 
reasons  for  it  are  not  known,  or  cannot  be  understood.  The  legislature 
holds  the  public  purse.  It  fixes  the  compensation  of  all  other  departments; 
it  applies,  as  well  as  raises,  all  revenue.  It  is  a  numerous  body  and 
necessarily  carries  along  with  it  a  great  force  of  public  opinion.  Its 
members  are  public  men,  in  constant  contact  with  one  another,  and  with  their 
constituents.  It  would  seem  to  be  plain  enough  that,  without  constitutional 
provisions  which  should  be  fixed  and  certain,  such  a  department,  in  case  of 
excitement,  would  be  able  to  encroach  on  the  judiciary.  Therefore  is  it.  that 
a  security  of  judicial  independence  becomes  necessary."     Works,  III,  29. 

Kent  declares:  "From  the  mass  of  powers  necessarily  vested  in  the 
legiclature,  and  the  active  and  sovereign  nature  of  these  powers;   from  the 


Supremacy  of  the  Uxited  States  Coxstitetiox.         9 

sufficiently  numerous  to  feel  all  the  passions  which  actuate  a  mul- 
titude, yet  not  so  numerous  as  to  be  incapable  of  pursuing  the 
objects  of  its  passions  by  all  the  means  which  reason  prescribes, 
it  is  against  the  enterprising  ambition  of  this  department  that 
the  people  ought  to  indulge  all  their  jealousy  and  exhaust  all 
their  precautions.  .  .  .  Its  constitutional  powers  being  at 
once  more  exclusive  and  less  susceptible  of  precise  limits,  it  can, 
with  greater  facility,  mask  under  complicated  and  indirect 
measures,  the  encroachments  that  it  makes  on  co-ordinate 
departments." 

§  5.  Courts  Do  Not  "  Nullify  "  Laws. 

The  doctrine  that  an  unconstitutional  law  is  void  is  often 
stated  as  a  deduction  from  the  premise  that  constitutional  law  is 
a  superior  kind  of  law  to  which  statute  law  of  inferior  rank  is 
obliged  to  yield.  Accurately  speaking,  however,  this  is  not  the 
.  for  the  unconstitutional  statute  is  not  law  at  all,  whatever  its 
form  or  however  solemnly  enacted  and  promulgated. 

There  are  not  and  cannot  be  degrees  of  legal  validity.  Any 
given  rule  of  conduct  or  definition  of  a  right  either  is  or  is  not 

numerous  bodies  of  which  the  legislature  is  composed,  the  popular  sym- 
pathies which  it  ffltcitra,  and  its  immediate  dependence  upon  the  people  by 
means  of  frequent  periodical  elections,  it  follows  that  the  legislative  depart- 
ment of  the  government  will  have  a  decided  superiority  of  influence.  It  is 
constantly  acting  upon  all  the  great  interests  of  society,  and  agitating  its 
hopea  and  fears.  It  is  liable  to  be  constantly  swayed  by  popular  prejudice  and 
passion,  and  it  is  difficult  to  keep  it  from  pressing  with  injurious  weight 
upon  the  constitutional  rights  and  privileges  of  the  other  departments.  An 
independent  judiciary,  venerable  by  its  gravity,  its  dignity  and  its  wisdom, 
and  delil>erating  with  entire  serenity  and  moderation,  is  peculiarly  fitted  for 
the  exalted  duty  of  expounding  the  Constitution,  and  taxing  the  validity 
of  statutes  by  that  standard.  It  is  only  by  the  free  exercise  of  this  power 
that  courts  of  justice,  are  enabled  to  repel  assaults,  and  to  protect  every 
part,  of  the  government,  and  every  member  of  the  community,  from  undue 
and  destructive  innovations  upon  their  chartered  rights.  It  nas  accordingly 
become  a  settled  principle  in  the  legal  polity  of  this  country,  that  it  belongs 
to  the  judicial  power,  as  a  matter  of  right  and  duty,  to  declare  every  act 
of  the  legislature,  made  in  violation  of  the  Constitution,  null  and  void." 
Commentaries,  Lect.  XX. 


10  United  States  Constitutional  Law. 

law.  When  therefore  we  describe  any  particular  measure  as  an 
unconstitutional  law,  and  therefore,  of  course,  void,  we  are  in 
fact,  strictly  speaking,  guilty  of  a  contradiction  of  terms,  for  if 
it  is  unconstitutional  it  is  not  a  law  at  all;  or,  if  it  is  a  law,  it 
cannot  be  unconstitutional.  Thus  when  any  particular  so-called 
law  is  declared  unconstitutional  by  a  competent  court  of  last  resort, 
the  measure  in  question  is  not  "  vetoed "  or  "  annulled,"  but 
simply  declared  never  to  have  been  law  at  all,  never  to  have  been, 
in  fact,  anything  more  than  a  futile  attempt  at  legislation  on  the 
part  of  the  legislature  enacting  it.  This  is  a  very  important 
point,  for  did  the  decision  of  the  court  operate  as  a  veto  the  effect 
would  be  simply  to  hold  that  the  law  should  cease  to  be  valid  from 
and  after  the  time  such  decision  was  rendered,  whereas,  in  fact, 
the  effect  is  to  declare  that  the  law  never  having  had  any  legal 
force  no  legal  rights  or  liabilities  can  be  founded  upon  it.  In 
Norton  v.  Shelby  Co.,6  Mr.  Justice  Field  says :  "  An  unconstitu- 
tional act  is  not  a  law,  it  confers  no  rights,  it  imposes  no  duties,  it 
affords  no  protection,  it  creates  no' office;  it  is,  in  legal  contempla- 
tion, as  inoperative  as  though  it  had  never  been  passed." 

An  exception  to  this  doctrine,  and,  to  the  author's  mind,  an 
illogical  and  ill-considered  one,  is  that  made  by  the  Supreme 
Court  in  Gelpeke  v.  Dubuque7  and  the  cases  affirming  it.8  In 
these  cases  it  has  been  held  that  while  a  decision  of  the  highest 
court  of  a  State  holding  void  an  act  of  the  State  because  in  con- 
flict with  the  Constitution  of  that  State  will  be  followed  by  the 
federal  Supreme  Court  as  to  all  rights  of  action  accruing  after 
the  rendition  of  such  decision,  it  will  not  be  applied  to  earlier 
transactions  entered  into  when  the  law  in  question  had  been 
declared  valid  by  the  state  courts  and  these  transactions  had  been 
entered  into  in  good  faith  confiding  in  the  decision  of  the  courts 
upholding  the  law.9 

•  118  U.  S.  425;  6  Sup.  Ct.  Rep.  1121;  30  L.  ed.  178. 
U  Wall.  175;  17  L.  ed.  520. 

8  See  section  517.  There  are  also  some  other  exceptions,  among  which  is  the 
validity  given  to  acts  of  de  facto  officers  and  de  facto  corporations  whose 
tenure  of  office  or  existence  is  based  upon  statutes  later  held  unconstitutional. 

9  It  may  also  be  proper  to  observe  that  acts  committed  by  persons  exercis- 
ing in  good  faith  powers  conferred  by  acts  later  held  unconstitutional  are  some- 


Supremacy  of  the  United  States  Constitution.       11 

In  declaring  unconstitutional,  and  therefore  void,  the  enact- 
ment of  a  legislative  body,  it  has  sometimes  been  argued  that  a 
court  defeats  the  will  of  the  .people  as  whose  law-making  organ  and 
mouthpiece  the  legislature  acts.  In  truth,  however,  what  is  done 
is  this:  The  people,  acting  solemnly  and  deliberately  in  their 
sovereign  capacity,  declare  that  certain  matters  shall  be  deter- 
mined in  a  certain  way.  These  matters,  because  of  their  great 
and  fundamental  importance,  they  reduce  to  definite  written  form, 
and  declare  they  shall  not  be  changed  except  in  a  particular  man- 
ner. In  addition  to  this  they  go  on  to  say,  in  substance,  that  so 
decided  is  their  will,  and  so  maturely  formed  their  judgment,  upon 
these  matters,  that  any  act  of  their  own  representatives  in  legis- 
lature inconsistent  therewith,  is  not  to  be  taken  as  expressing  their 
deliberate  will.  Therefore,  when  the  courts  declare  void  legisla- 
tive acts  inconsistent  with  constitutional  provisions,  the  judges  are 
giving  effect  to  the  real  will  of  the  people  as  they  have  previously 
solemnly  declared  it.  Thus,  "  In  exercising  this  high  authority, 
the  judges  claim  no  judicial  supremacy;  they  are  only  the  ad- 
ministrators of  the  public  will.  If  an  act  of  the  legislature  is 
held  void,  it  is  not  because  the  judges  have  any  control  over  the 
legislative  power,  but  because  the  act  is  forbidden  by  the  Con- 
stitution, and  because  the  will  of  the  people,  which  is  therein  de- 
clared, is  paramount  to  that  of  their  representatives  expressed  in 
any  law."  10 

times  given  a  certain  validity.  This,  however,  is  in  accordance  with  a  general 
principle  governing  dc  facto  officers  and  is  hardly  to  be  treated  as  an  exception 
to  the  doctrine  stated  in  the  text.  In  United  States  v.  Realty  Co.  (163  U.  S. 
427:  16  Sup.  Ct.  Rep.  1120;  41  L.  ed.  215)  it  was  held  that  persons  acting  in 
good  faith  under  an  unconstitutional  act  of  Congress  might  have  an  equitable 
claim  against  the  United  States,  for  the  payment  of  which  an  appropriation 
might  be  made  by  Congress. 

io  Lindsay  v.  Commissioners,  2  Ray,  3S,  61. 


CHAPTER  n. 

PRINCIPLES   OF  CONSTITUTIONAL  CONSTRUCTION. 

§  6.  Circumstances  Under  Which  the  Courts  Will  Hold  an  Act 
of  Congress  Void. 

Because  an  act  of  Congress  is  the  declaration  of  a  co-ordinate 
branch  of  the  Xational  Government,  the  courts  have  established 
for  themselves  certain  more  or  less  definite  rules  governing  the 
conditions  under  which  they  will  undertake  to  pass  upon  the  con- 
stitutionality of  federal  statutes.  These  rules  are  self-established, 
under  a  sense  of  propriety  and  expediency,  and  are  not  created 
by  any  constitutional  necessity.1 

1.  Courts  of  first  instance  will  not  hold  an  act  unconstitutional 
except  in  clear  cases,  but  will  leave  this  to  the  final  judgment  of 
the  higher  courts.  Inferior  courts  hold  themselves  bound  by  the 
prior  decisions  of  superior  courts  as  to  the  validity  of  an  act,  even 
though  new  reasons,  pro  or  contra,  are  raised.  The  presumption 
is  that  all  possible  arguments  were  in  fact  considered  by  the 
superior  courts. 

2.  The  Supreme  Court  has  held  that,  ordinarily,  it  will  not 
hold  a  law  void  except  by  a  majority  of  the  full  bench.  Thus, 
in  1825,  the  Court  of  Appeals  of  Kentucky  refused  to  follow  a 
decision  of  the  Supreme  Court  of  the  United  States,  which  had 
held  a  law  of  Kentucky  void  as  contrary  to  the  federal  Constitu- 
tion, stating  as  a  reason  that  the  decision  had  not  been  concurred 
in  by  a  majority  of  the  entire  court.2  After  this  occurrence  the 
Supreme  Court  adopted  the  rule  as  stated  above.  In  New  York  v. 
ATiln,3  decided  in  1834,  ilarshall  said:  "The  practice  of  this 
court  is  not  (except  in  cases  of  absolute  necessity)  to  deliver 
any  judgment  in  cases  where  constitutional  questions  are  in- 
volved, unless  four  justices  [the  court. then  consisted  of  seven] 


i  Cf.  the  enumeration  of  these  rules  by  Cooley  in  his  Const.  Lim,,  Chap.  VII. 

2  Bodley  v.  Gaither,  3  Monroe,  57. 

3  8  Pet.  120 ;  8  L.  ed.  888. 

[12] 


Principles  of  Constitutional  Construction.  13 

concur  in  the  opinion,  thus  making  the  decision  that  of  a  majority 
of  the  whole  court,  In  the  present  cases  four  justices  do  not  con- 
cur in  opinion  as  to  the  constitutional  questions  which  have  been 
argued.  The  court  therefore  direct  these  cases  to  be  reargued  at 
the  next  term,  under  the  expectation  that  a  larger  number  of  the 
judges  may  then  be  present." 

3.  The  courts  will  not  pass  upon  the  constitutionality  of  a  law 
except  in  suits  duly  brought  before  them  at  the  instance  of 
parties  whose  material  interests  are  involved.4 

*  Advisory  Opinions:  The  following  data  regarding  Advisory  Opinions  is 
largely  taken  from  Thayer,  Cases  on  Constitutional  Lain,  I,  175. 

The  constitutions  of  four  of  the  States  (Massachusetts,  Maine,  New  Hamp- 
shire, Rhode  Island)  provide  that  upon  request  by  the  executive  or  legislature, 
the  judges  of  the  highest  courts  shall  render  an  opinion  upon  the  constitu- 
tionality of  a  proposed  measure  submitted  to  them.  And  six  States  (Colorado, 
Florida,  Idaho,  Illinois,  >iehraska,  Washington )  provide  tliat  judges  may 
suggest  improvements  in  the  law  for  legislative  action.  (Dealey,  Our  State 
Constitutions,  p.  40,  Annals  of  the  American  Academy  of  Political  and  Social 
Science.     Supplement,  March,  1907.) 

In  general  it  may  be  said  that  these  opinions  thus  obtained  are  purely 
advisory  in  character,  and  that  they  do  not  even  constitute  judicial  pre- 
cedents to  control  the  future  judgments  of  the  courts  that  render  them.  This 
has  been  definitely  declared  in  Massachusetts,  New  Hampshire,  Rhode  Island, 
.Missouri  (where  the  practice  existed  from  18G5  to  1875)  and  Florida.  In 
Maine  and  Colorado,  however,  these  decisions  have  been  held  binding.  (12 
Col.  Rept.  106.  70  Maine,  p.  503).  The  Maine -court  said:  "Various  questions 
involving  the  true  construction  of  the  Constitution  and  statutes  .  .  .  arose, 
and  the  Governor  called  upon  this  court  for  its  opinion  on  the  questions 
propounded.  The  court  was  required  by  the  Constitution  to  expound  and 
construe  the  provisions  of  the  Constitution  and  statutes  involved.  It  gave 
full  answers.  The  opinion  of  the  court  was  thus  obtained  in  one  of  the  modes 
provided  in  the  Constitution  for  an  authoritative  determination  of  'important 
questions  of  law.'  The  law  thus  determined  is  the  conclusive  guide  of  the 
Governor  and  Council  in  the  performance  of  their  ministerial  duties.  Any 
action  on  their  part  ...  in  violation  of  the  Constitution  and  law  thus  de- 
clared is  a  usurpation  of  authority  and  must  be  held  void." 

Despite  Maine  and  Colorado,  the  weight  cf  precedent,  as  well  as  the  better 
Kason  and  wisdom,  is  in  favor  of  holding  such  opinions  advisory  merely. 
Such  decisions  do  not  arise  out  of  or  relate  to  any  particular  facts  or 
particular  purpose  which  might  explain  or  limit  the  generality  of  their  state- 
ments. The  judges  have  not  had  the  benefit  of  the  hearing  of  counsel,  and 
there  has  been  no  argument  before  them. 

The  opinions  of  the  Attorney-General  of  the  United  States  resemble  in 
their  advisory  character  these  opinions  of  judges. 


14  United  States  Constitutional  Law. 

4.  The  court  will  not  pass  adversely  upon  the  validity  of  an  act 
of  Congress  unless  it  is  absolutely  necessary  for  it  to  do  so  in  order 
to  decide  the  question  at  issue.     This  principle  has  been  so  often 

declared  that  the  citation  of  authorities  is  not  necessary.5 

_ ___ * 

A  number  of  instances  have  occurred  in  which  justices  in  States,  whose 
Constitutions  did  not  give  the  legislature  or  executive  this  power  to  call  for 
their  opinions,  have  refused  to  give  them  when  called  upon  to  do  so.  Es- 
pecially in  Minnesota  (10  Minn.  78,  1865)  the  court  held  unconstitutional  an 
act  which  provided  that  "either  house  may  by  resolution  require  the  opinion 
of  the  Supreme  Court  or  any  one  or  more  of  the  judges  thereof  upon  a  given 
subject,  and  it  shall  be  the  duty  of  such  court,  or  judges  thereof,  when  so 
requested  respectively  to  give  such  opinions  in  writing." 

The  Pennsylvania  court,  however,  in  a  similar  case,  gave  the  desired  opinion 
without  comment.     (3  Binney,  595.) 

In  several  cases,  justices  have  refused,  even  in  those  States  where  the  power 
to  call  for  an  opinion  is  in  the  Constitution,  to  give  an  opinion  upon  questions 
which  it  was  possible  might  afterward  come  before  thorn  for  adjudication. 
Instances  of  this  occurred  several  times  in  Missouri  and  once  in  Maine. 

In  the  Constitutional  Convention  of  1787  it  was  proposed  to  give  this 
power  to  the  President  and  Congress  and  to  ask  opinions  of  the  Supreme  Court, 
but  nothing  came  of  it.     (5  Ell.  Deb.  445.) 

In  1793  Washington  asked  the  opinion  of  the  Supreme  Court  in  re  Jays 
Treaty.  Twenty-nine  questions  were  propounded.  The  Court  refused  to 
answer.  Thayer  thinks  it  fortunate  that  this  first  request  should  have  come 
in  so  weighty  a  form,  else  the  court  might  have  slipped  into  an  unfortunate 
precedent,  and  thus  become  concerned  in  politics. 

"  New  York  originally  not  only  gave  her  legislators  a  share  in  judicial 
power,  but  her  judges  a  share  in  that  of  legislation.  Her  Constitution  of  1777 
provided  for  a  council  of  revision,  consisting  of  the  Governor,  the  Chancellor, 
and  the  judges  of  the  Supreme  Court,  to  whom  all  bills  which  passed  the 
Senate  and  Assembly  should  be  presented  for  consideration;  and  that  if  a 
majority  of  them  should  deem  it  improper  that  any  such  bill  become  a  law 
they  should  within  ten  days  return  it  with  their  objections  to  the  house 
in  which  it  originated,  which  should  enter  the  objections  at  large  in  its 
minutes,  and  proceed  to  reconsider  the  bill;  and  that  it  should  not  become  a 
law  unless  repassed  by  a  vote  of  two-thirds  of  the  members  of  each  house. 
For  forty  years  this  remained  the  law,  and  the  Council  of  Revision  contained 
from  time  to  time  judges  of  great  ability,  Chancellor  Kent  being  one.  During 
this  period,  6590  bills  in  all  were  passed.  One  hundred  and  twenty-eight  of 
them  were  returned  by  the  Council  with  their  objections,  and  only  seventeen 
of  these  received  the  two-thirds  necessary  to  re-enact  them."  Baldwin,  The 
American  Judiciary,  p.  30. 

s  In  Marbury  v.  Madison  the  Supreme  Court,  although  it  declared  that  it 
had  not  jurisdiction  of  the  case,  went  on  to  lay  down  the  law  applicable  to  the 
other  points  at  issue.    The  excuse  for  so  doing  was  that  the  court  felt  itself 


Principles  of  Constitutional  Construction.  15 

5.  "When  it  is  possible  to  do  so  without  doing  too  great  violence 
to  the  words  actually  used,  the  language  of  a  statute  will  be  so  re- 
obligated  first  to  determine  whether  or  not  the  mandamus  asked  for  should 
issue,  so  that,  if  possible,  it  might  dispose  of  the  case  without  calling  into 
question  the  constitutionality  of  the  act  of  Congress  granting  the  original 
jurisdiction  under  which  the  suit  had  been  brought.  Whether  this  was  a 
sufficient  excuse  is  doubtful.  Jefferson  was  vehement  in  criticism  of  the  action. 
In  the  Dred  Scott  case  the  Supreme  Court  after  holding  that  the  lower 
federal  courts  from  which  the  case  had  come  by  appeal,  had  had  no  jurisdic- 
tion, went  on  to  discuss  the  other  points  raised  in  the  record  before  it.  The 
propriety  of  this  course  was  strenuously  objected  to  by  the  minority  justices. 
Taney's  argument  was  that  the  plea  to  the  jurisdiction  that  had  been 
entered  was  not  as  to  the  jurisdiction  of  the  Supreme  Court,  but  as  to 
that  of  the  circuit  court  in  which  the  suit  had  been  begun,  and  that, 
therefore,  the  case  being  fairly  before  the  Supreme  Court,  that  tribunal 
might  examine  the  whole  record  and  correct  any  errors  that  might  have  been 
made  by  the  courts  below.  "  There  can  be  no  doubt  of  the  jurisdiction  of 
this  court  to  reverse  the  judgment  of  a  circuit  court,  and  to  reverse  it  for 
any  error  apparent  in  the  record,  whether  it  be  the  error  of  giving  judgment 
in  a  case  over  which  it  had  no  jurisdiction,  or  any  other  material  error;  and 
this  too,  whether  there  is  any  plea  in  abatement  or  not.  The  objection 
appears  to  have  arisen  from  confounding  writs  of  error  to  a  state  court,  with 
writs  of  error  to  a  circuit  court  of  the  United  States.  Undoubtedly,  upon 
a  writ  of  error  to  a  state  court,  unless  the  record  shows  a  t:ase  that  gives 
jurisdiction,  the  case  must  be  dismissed  for  want  of  jursidiction  in  the  court. 
And  if  it  is  dismissed  on  that  ground,  we  have  no  right  to  examine  and 
decide  upon  any  question  presented  by  the  bill  of  exceptions,  or  any  other 
part  of  the  record.  But  writs  of  error  to  a  state  court  and  to  a  circuit  court 
of  the  United  States  are  regulated  by  different  laws,  and  stand  upon  entirely 
different  principles.     And  in  a  writ  of  error  to  a  circuit  court  of  the  United 

tea,  the  whole  record  is  before  this  court  for  examination  and  decision; 
and  if  the  sum  in  controversy  is  large  enough  to  give  jurisdiction,  it  is  not 
only  the  right,  but  it  i<  the  judicial  duty  of  the  court  to  examine  the  whole 
case  as  presented  by  the  record,  and  if  it  appears  upon  its  face  that  any 
material  error  or  errors  have  been  committed  by  the  court  below,  it  is  the 
duty  of  this  court  to  reverse  the  judgment  and  remand  the  case.  And 
certainly  an  error  in  remanding  a  judgment  upon  the  merits  in  favor  of 
either  party,  in  a  case  in  which  it  was  not  authorized  to  try,  and  over  which 
it  had  no  jurisdiction,  is  as  grave  an  error  as  a  court  can  commit." 

Justice  Curtis  in  his  dissenting  opinion  showed  by  a  citation  of  authority 
that  the  foregoing  had  not  in  fact  been  the  practice  and  declared  doctrine 
of  the  Supreme  Court,  and  properly  said  that,  especially,  the  court  should 
not  have  proceeded  in  the  case  to  declare  unconstitutional  an  act  of  Congress 
in  violation  of  the  principle  that  this  will  not  be  done  when  it  is  possible 
to  render  a  judgment  upon  any  other  ground. 


16  Exited  States  Coxstitutioxae  Law. 

strieted  as  to  render  the  measure  constitutional.6  For  it  is  always 
presumed  that  Congress  did  not  intend  to  exceed  its  constitutional 
powers.  Where,  however,  the  scope  of  the  law  is  plainly  ex- 
pressed, and  as  such  is  unconstitutional,  the  court  will  not  resort 
to  a  strained  or  arbitrary  interpretation  in  order  to  render  the 
law  valid.  Thus  in  Howard  v.  Illinois  Central  R.  Co.7  the 
court  declined  to  restrict  the  terms  of  a  law  with  reference  to 
the  liability  of  a  common  carrier  for  injury  to  "  any  of  its 
employees  "  to  such  employees  only  as  should  be  injured  while 
engaged  in  interstate  commerce,  and  thereby  to  render  the 
statute  valid  as  applied  within  the  States.8 

6 "  It  is  elementary  when  the  constitutionality  of  a  state  is  assailed,  if  the 
statute  be  reasonably  susceptible  of  two  interpretations,  by  one  of  which  it 
would  be  unconstitutional  and  by  the  other  valid,  it  is  our  plain  duty  to  adopt 
that  construction  which  will  save  the  statute  from  constitutional  infirmity. 
Knights  Templars  Indemnity  Co.  v.  Jarman  (187  U.  S.  107;  23  Sup.  Ct.  Rep. 
108;  47  L.  ed.  139).  And  unless  this  rule  be  considered  as  meaning  that  our 
duty  is  to  first  decide  that  a  statute  is  unconstitutional  and  then  proceed  to 
hold  that  stich  ruling  was  unnecessary  because  the  statute  is  susceptible  of  a 
meaning,  which  causes  it  not  to  be  repugnant  to  the  Constitution,  the  rule 
plainly  must  mean  that  where  a  statute  is  susceptible  of  two  constructions, 
by  one  of  which  grave  and  doubtful  constitutional  questions  arise  and  by  the 
other  of  which  such  questions  are  avoided,  oxir  duty  is  to  adopt  the  latter." 
United  States  v.  D.  &  H.  Ry.  Co.,  213  U.  S.  366;  29  Supi  Ct.  Rep.  527;  53  L. 
ed.  836. 

7  207  U.  S.  463;  28  Sup.  Ct.  Rep.  141;  52  L.  ed.  297. 

8  "  The  principles  of  construction  invoked  are  undoubted,  but  are  inapplicable. 
Of  course,  if  it  can  be  lawfully  done,  our  duty  is  to  construe  the  statute 
so  as  to  render  it  constitutional.  But  this  does  not  imply,  if  the  text  of 
an  act  is  unambiguous,  that  it  may  be  rewritten  to  accomplish  that  purpose. 
Equally  clear  is  it,  generally  speaking,  that  where  a  statute  contains  pro- 
visions which  are  constitutional  and  others  which  are  not,  effect  may  be 
given  to  the  legal  provisions  by  separating  them  from  the  illegal.  But  this 
applies  only  to  a  case  where  the  provisions  are  separable,  and  not  dependent 
one  upon  the  other,  and  does  not  support  the  contention  that  that  which 
is  indivisible  may  be  divided.  Moreover,  even  in  a  case  where  legal  provisions 
may  be  severed  from  those  which  are  illegal,  in  order  to  save,  the  rule 
applies  only  where  it  is  plain  that  Congress  would  have  enacted  the  legisla- 
tion with  the  unconstitutional  provisions  eliminated.  All  these  principles  are 
so  clearly  settled  as  not  to  be  open  to  controversy.  They  were  all,  after  a 
full  review  of  the  authorities,  restated  and  reapplied  in  a  recent  case.  Illinois 
C.  R.  Co.  v.  McKendree  (203  U.  S.  514;  27  Sup.  Ct.  Rep.  153;  51  L.  ed.  298)." 
The  minority  in  this  case  assert  that  the  court  might  properly  have  so 
restricted  the  operation  of  the  act  in  question  as  to  render  it  constitutional. 


Prixciples  of  Coxstitutioxal  Coxstbuctiox.  17 

In  James  v.  Bowman9  is  again  illustrated  the  refusal  of  the 
court  to  limit  the  express  terms  of  an  act  of  Congress  in  order  to 
render  it  constitutional.  In  this  case  the  court  declined,  by  judi- 
cial construction,  to  limit  the  application  of  a  statute  to  federal 
elections  which  in  terms  provided  for  the  punishment  of  bribery 
committed  at  all  elections,  federal  and  state.  To  do  so,  the  court 
declared,  would  be  judicial  legislation.  "  It  would  be  wresting 
the  statute  from  the  purpose  with  which  it  was  enacted  and  mak- 
ing it  serve  another  purpose.  Doubtless  even  a  criminal  statute 
may  be  good  in  part  and  bad  in  part,  provided  the  two  can  be 
clearly  separated,  and  it  is  apparent  that  the  legislative  body 
would  have  enacted  the  one  without  the  other,  but  there  are  no 
two  parts  to  this  statute." 

6.  The  court  will  not  permit  the  unconstitutionality  of  a  par- 
ticular provision  of  a  law  to  invalidate  the  entire  law  if  it  is 
possible  to  separate  the  invalid  provision  from  the  other  provisions 

In  United  States  r.  Eeese  1 02  U.  S.  214;  23  L.  ed.  563)  the  court  say: 
"  We  are,  therefore,  directly  called  upon  to  decide  whether  a  penal  statute, 
enacted  by  Congress,  with  its  limited  powers,  which  is  in  general  language 
broad  enough  to  cover  wrongful  acts  without  as  well  as  within  the  constitu- 
tional jurisdiction,  can  be  limited  by  judicial  construction  so  as  to  make  it 
operate  only  on  that  which  Congress  may  rightfully  prohibit  and  punish. 
For  tliis  purpose  we  must  take  these  sections  of  the  statute  as  they  are. 
We  are  not  able  to  reject  a  part  which  is  unconstitutional  and  retain  the 
remainder,  because  it  is  not  possible  to  separate  that  which  is  unconstitu- 
tional, if  there  be  any  such,  from  that  which  is  not.  The  proposed  effect 
is  not  to  be  attained  by  striking  out  or  disregarding  words  that  are  in 
the  section,  but  by  inserting  those  that  are  not  now  there.  Each  of  the 
sections  must  stand  as  a  whole,  or  fall  altogether.  The  language  is  plain. 
There  is  no  room  for  construction,  unless  it  be  as  to  the  effect  of  the 
Constitution.  The  question,  then,  to  be  determined,  is  whether  we  can  intro- 
duce words  of  limitation  into  a  penal  statute  so  as  to  make  it  specific,  when, 
as  expressed,  it  is  general  only." 

And  in  the  Trade-Mark  Cases  (100  U.  »S.  82:  25  L.  ed.  550)  the  court  say: 
"  If  we  should,  in  the  case  before  us,  undertake  to  make,  by  judicial  con- 
struction, a  law  which  Congress  did  not  make,  it  is  quite  probable  we  should 
do  what,  if  the  matter  were  now  before  that  body,  it  would  be  unwilling  to 
do;  namely,  make  a  trade-mark  law  which  is  only  partial  in  its  operation, 
and  which  would  complicate  the  rights  which  parties  would  hold,  in  some 
instances,  under  the  act  of  Congress,  and  in  others  under  state  law." 

»  190  U.  B.  127;  23  Sup.  Ct.  Rep.  678;  47  L.  ed.  979. 

2 


18  United  States  Constitutional  Law. 

without  destroying  or  impairing  their  efficiency  to  attain  the  re- 
sults evidently  intended  by  the  legislation  that  enacted  it.  Even 
when  thus  separable,  however,  the  court  will  not  hold  the 
remainder  of  the  law  valid  if  there  is  doubt  whether,  the  realiza- 
tion of  the  whole  of  its  will  being  rendered  impossible,  the  legis- 
lature would  have  desired  the  execution  of  a  part  only.  Thus  in 
the  case  of  Howard  v.  Illinois  C.  R.  Co.,'10  cited  in  the  foregoing 
section,  the  court  having  held  that  the  act  by  its  terms  related  to 
intrastate  as  well  as  interstate  commerce,  declined  to  hold  the  act 
valid  even  as  to  employees  engaged  in  interstate  commerce. 
The  court  say:  "As  the  act  before  us,  by  its  terms,  relates 
to  every  common  carrier  engaged  in  interstate  commerce,  and  to 
any  of  the  employees  of  every  such  carrier,  thereby  regulating 
every  relation  of  a  carrier  engaged  in  interstate  commerce  with 
its  servants  and  of  such  servants  among  themselves,  we  are  unable 
to  say  that  the  statute  would  have  been  enacted  had  its  provisions 
been  restricted  to  the  limited  relations  of  that  character  which  it 
was  within  the  power  of  Congress  to  regulate."  n 

§  7.  Legislative  Motives. 

"With  the  motives  of  the  legislators  the  courts  cannot  concern 
themselves.  "  The  judiciary  can  only  inquire  whether  the  means 
devised  in  the  execution  of  a  power  granted  are  forbidden  by  the 
Constitution.  It  cannot  go  beyond  that  inquiry  without  intrench- 
ing upon  the  domain  of  another  department  of  government.  That 
it  may  not  do  with  safety  to  our  institutions."  12 

10  207  U.  S.  4G3;  28  Sup.  Ct.  Rep.  141;  52  L.  ed.  297. 

"Citing  Trade  Mark  Cases,  100  U.  S.  82;  26  L.  ed.  550;  Cooley,  Const. 
JLitn.  178. 

12  Interstate  Commerce  Commission  v.  Brimson,  154  U.  S.  447;  14  Snp.  Ct. 
Rep.  1125;  38  L.  ed.  1047. 

"  So  long  as  Congress  keeps  within  the  limits  of  its  authority  as  denned 
by  the  Constitution,  infringing  no  rights  recognized  or  secured  by  that  in- 
stiument,  its  regulations  of  interstate  and  international  commerce,  whether 
founded  in  wisdom  or  not,  must  be  submitted  to  by  all.  ...  To  depart 
from  [this  rule  of  construction]  because  of  the  circumstances  of  special  cases, 
or  because  the  rule,  in  its  operation,  may  possibly  affect  the  interests  of 
business  is  to  endanger  the  safety  and  integrity  of  our  institutions  and  make 
the  Constitution  mean  not  what  it  says  but  what  interested  parties  wish 
it  to  mean  at  a  particular  time  and  under  particular  circumstances.   .    .    . 


Principles  of  Constitutional  Construction.  19 

In  Ex  parte  McCardle13  the  court  declined  to  take  appellate 
jurisdiction  because  of  the  enactment  by  Congress  of  a  law 
which  it  was  well  known  had  been  passed  for  the  express  pur- 
pose of  preventing  the  court  from  questioning  the  constitution- 
ality of  certain  measures  which  the  Federal  Government  had  taken 
for  the  "  Reconstruction "  of  the  Southern  States  after  the 
termination  of  the  Civil  War.  "  We  are  not  at  liberty/'  said  the 
court,  '"  to  inquire  into  the  motives  of  the  legislature.  We  can 
only  examine  into  its  power  under  the  Constitution;  and  the 
power  to  make  exceptions  to  the  appellate  jurisdiction  of  this 
court  is  given  by  express  words."  14 

§  8.  Expediency  and  Reasonableness  of  Legislation  not  Subject 
to  Judicial  Determination. 

The  power  of  Congress  to  legislate  being  conceded,  the  wisdom 
or  expediency  of  the  manner  in  which  the  power  is  exercised  is 
beyond  judicial  criticism  or  control.15 

If  the  statute  is  beyond  the  constitutional  power  of  Congress,  the  court  would 
err  in  the  performance  of  a  solemn  duty  if  it  did  not  so  declare.  But  if 
nothing  more  can  be  said  than  that  Congress  erred  .  .  .  the  remedy  for 
the  error  and  the  attendant  mischief  is  the  selection  of  new  Senators  and 
Representatives,  who,  by  legislation,  will  make  such  changes  in  existing 
statutes,  or  adopt  such  new  statutes,  as  may  be  demanded  by  their  constitu- 
ents and  be  consistent  with  law."  Northern  Securities  Co.  v.  United  States 
(193  U.  S.  197;  24  Sup.  Ct.  Rep.  436;  48  L.  ed.  679). 

13  7  Wall.  506;  19  L.  ed.  264. 

"In  McCray  v.  United  States  (195  U.  S.  27;  24  Sup.  Ct.  Rep.  769;  49 
L.  ed.  78)  the  authorities  upon  this  point  are  reviewed,  the  court  saying: 
"The  decisions  of  this  court  from  the  beginning  lend  no  support  whatever 
to  the  assumption  that  the  judiciary  may  restrain  the  exercise  of  lawful 
power  on  the  assumption  that  a  wrongful  purpose  or  motive  has  caused  the 
power  to  be  exerted.  ...  On  the  contrary,  the  doctrine  of  a  number  of 
cases  is  inconsistent  with  its  existence." 

is  In  Treat  v.  White  (181  U.  S.  264;  21  Sup.  Ct.  Rep.  611;  45  L.  ed.  853) 
with  reference  to  a  stamp  duty  levied  by  Congress,  the  court  say:  "The 
power  of  Congress  in  this  direction  is  unlimited.  It  does  not  come  within 
the  province  of  this  court  to  consider  why  agreements  to  sell  shall  be  subject 
to  the  stamp  duty,  and  agreements  to  buy  not.  It  is  enough  that  Congress, 
in  this  legislation,  has  imposed  a  stamp  duty  upon  this  one,  and  not  upon 
the  other."  In  Patton  v.  Brady  (184  U.  S.  608;  22  Sup.  Ct.  Rep.  493;  46 
L.  ed.  713)  the  court  say:  "It  is  no  part  of  the  function  of  a  court  to 
inquire  into  the  reasonableness  of  the  excise,  either  as  regards  the  amount 
or  the  property  upon  which  it  is  imposed." 


20  United  States  Constitutional  Law. 

§  9.  Presumption  in  Favor  of  the  Constitutionality  of  an  Act  of 
Congress. 

The  fact  that  Congress  has  given  a  particular  construction  to 
a  constitutional  provision,  is  of  very  great  weight  with  the  Su- 
preme Court  when  it  is  called  upon  to  examine  the  correctness 
of  this  interpretation.  This  is  due  to  the  fact  that  the  court  is 
dealing  with  the  act  of  a  separate  and  independent  department 
of  government  which  the  Constitution  intends  to  be,  so  far  a9 
possible,  co-ordinate  in  power  with  the  executive  and  judicial 
departments,  that  is,  co-ordinate  in  the  sense  that,  like  them,  when 
acting  within  the  limits  of  the  power  constitutionally  granted  it, 
it  shall  be  independent  of  control  by  the  others. 

From  necessity  the  Constitution  must  have  intended  that  the 
legislative  and  executive  departments  should  have  the  power,  in 
the  first  instance  at  least,  of  determining  the  extent  of  the  powers 
ronstftrrtionariy  granted  to  them,  and  that,  therefore,  the  judiciary 
should  not  substitute  its  judgment  for  theirs  except  in  cases  where 
there  is  no  doubt  that  the  action  which  has  been  taken  is  not 
constitutionally  warranted. 

"A  decent  respect  for  a  co-ordinate  branch  of  the  Federal  Gov- 
ernment,." says  Justice  Strong  in  Knox  v.  Lee,1G  "  demands  that 
the-  judiciary  should  presume,  until  the  contrary  is  clearly 
shown,  that  there  has  been  no  transgression  of  power  by  Congress, 
all  the  members  of  which  act  under  the  obligation  of  an  oath  of 
fidelity  to  the  Constitution." 

And  in  the  Sinking  Fund  Cases17  Chief  Justice  Waite  says: 
"  The  declaration  [that  an  act  of  Congress  is  void]  should  never 
be  made  except  in  a  clear  case.  Every  possible  presumption  is 
in  favor  of  the  validity  of  a  statute  and  this  continues  until  the 
contrary  is  shown  beyond  a  rational  doubt." 

In  Ogden  v.  Saunders18  Justice  Washington  says :  {i  It  is  but 
a  decent  respect  due  to  the  .  .  .  legislative  body,  by  winch 
any  law  is  passed,  to  presume  in  favor  of  its  validity,  until  the 

ra  12"  Wall.  457 ;  20  L.  ed.  287. 
"09  U.  S.  706;  25  L.  ed.  406. 
i»r?Wh.  213;  6  L.  ed.  606. 


Principles  of  Constitutional  Constetjction.  21 

violation   of   the    Constitution   is   proved   beyond    all   reasonable 
doubt." 

Quotations  similar  to  those  given  might  be  multiplied,  all  in 
substance  stating  this  general  rule,  declared  by  the  Supreme  Court 
from  the  first  years  of  its  existence,  that  an  act  of  Congress,  with 
reference  to  it>  constitutionality,  is  to  receive  the  benefit  of  every 
reasonable  doubt.19 

19  This  principle  of  construction  lias  received  a  most  philosophical  examina- 
tion in  the  essay  of  Professor  Thayer,  entitled  The  Origin  and  Scope  of  the 
American  Doctrine  of  Constitutional  Laic,  and  from  this  source  the  substance 
of  the  immediately  following  paragraphs  are  taken. 

In  giving  to  a  legislative  interpretation  the  benefit  of  every  rational  doubt 
as  to  its  constitutionality,  the  court  in  effect  says,  that  it  does  not  attempt 
to  say  what  its  own  best  judgment  is  as  to  the  point  at  issue,  but  whether 
it  is  within  the  limits  of  reason  for  the  legislature  to  give  to  the  Consti- 
tution the  construction  it  has  given.  The  M  is  thus  quite  similar  to  the 
function  of  a  judge  when  called  upon  to  set  aside  the  verdict  of  a  jury,  or  of 
a  jury  when  passing  upon  the  question  of  self-defense  in  a  criminal  trial, 
or  of  negligence  in  an  action  of  tort,  or  the  responsibility  of  an  inferior  for 
acts  done  at  the  order  of  a  superior.  "  The  doctrine,"  says  Thayer,  "... 
is  this,  that  in  dealing  with  the  legislative  action  of  a  co-ordinate  depart- 
ment, a  court  cannot  always,  and  for  the  purpose  of  all  sorts  of  questions, 
say  that  there  is  but  one  right  and  permissible  way  of  construing  the 
Constitution.  When  a  court  is  interpreting  a  writing  merely  to  ascertain 
or  apply  its  true  meaning,  then,  indeed,  there  is  but  one  meaning  allowable; 
namely,  that  which  the  court  adjudges  to  be  its  true  meaning.  But  when 
the  ultimate  question  is  not  that,  but  whether  certain  acts  of  another  depart- 
ment, officer,  or  individual  are  legal  or  permissible,  then  this  is  not  true. 
In  the  class  of  cases  which  we  have  been  considering,  the  ultimate  question  is 
not  what  is  the  true  meaning  of  the  Constitution,  but  whether  legislation 
is   sustainable  or  not." 

Again,  Thayer  says:  "The  courts  have  perceived  with  more  or  less  distinct- 
ness that  this  exercise  of  the  judicial  function  does  in  truth  go  far  beyond 
the  simple  bu-iness  whieh  its  judges  sometimes  describe.  If  their  duty  were 
in  truth  merely  and  nakedly  to  ascertain  the  meaning  of  the  text  of  the 
Constitution  and  of  the  impeached  act  of  the  legislature,  and  to  determine 
n  academic  question,  whether  in  the  court's  judgment  the  two  were  in 
conflict,  it  would,  fto  he  sure,  be  an  elevated  and  important  office,  one  dealing 
with  grent  mntters.  involving  large  public  considerations,  but  yet  a  function 
far  simpler  than  it  really  is.  Having  a-certained  all  this,  yet  there  remains 
a  question  —  the  really  momentous  question  —  whether,  after  all.  the  court 
can  disregard  the  act.  It  cannot  do  thi>  as  a  mere  matter  of  course  —  merely 
because  it  is  concluded  that  upon  a  just  and  true  construction,  the  law  is 
unconstitutional.    ...    It  can  only  disregard  the  act  when  those  who  have 


22  United  States  Constitutional  Law. 

§  10.  Presumption  in  Favor  of  the  Constitutionality  of  a  State 
Statute. 
The  rule  of  construction  that  has  been  under  consideration  has 
especial  application  to  acts  of  Congress.  When  the  constitution- 
ality of  a  state  law  is  involved,  the  principle  is  not  always  appli- 
cable. If  the  question  at  issue  is  as  to  whether  a  given  power 
resides  in  the  Federal  Government  or  in  the  States,  the  fact  that 
a  state  legislature  in  its  enactment  has  asserted  that  it  is  vested 
in  the    States,  is  no  presumption  in  favor  of  the  validity  of  this 

the  right  to  make. laws  have  not  merely  made  a  mistake,  but  have  made  a 
very  clear  one, —  so  clear  that  it  is  not  open  to  rational  question.  That  is 
the  standard  of  duty  to  which  courts  bring  legislative  acts:  that  is  the 
test  which  they  apply, —  not  merely  their  own  judgment  as  to  constitution- 
ality, but  their  conclusion  as  to  what  judgment  is  permissible  to  another 
department  which  the  Constitution  has  charged  with  the  duty  of  making  it. 
This  rule  recognizes  that,  having  regard  to  the  great,  complex,  ever-unfolding 
exigencies  of  government,  much  which  will  seem  unconstitutional  to  one 
man,  or  body  of  men,  may  reasonably  not  seem  so  to  another ;  that  the 
Constitution  admits  of  different  interpretations;  that  there  is  often  a  range 
and  choice  of  judgment;  that  in  such  cases  the  Constitution  does  not  impose 
upon  the  legislature  any  one  specific  opinion,  but  leaves  open  this  range  of 
choice;  and  that  whatever  choice  is  rational  is  constitutional." 

Judge  Baldwin,  in  his  work  on  The  American  Judiciary  (p.  103),  asserts 
that,  inasmuch  as  the  judgment  of  the  Supreme  Court  holding  unconstitutional 
an  act  of  Congress  is  often,  and  indeed  usually,  rendered  by  a  divided  court, 
the  principle  that  a  congressional  statute  will  not  be  held  void  so  long  as 
there  is  a  reasonable  doubt  as  to  its  invalidity,  is  not  applied.  "  The  majority 
must  concede,"  he  says,  "  that  there  is  a  reasonable  doubt  whether  the  stat- 
ute may  not  be  consistent  with  the  Constitution,  since  some  of  their  associates 
must  have  such  a  doubt,  or  go  further  and  hold  that  there  is  no  inconsistency 
between  the  two  documents,  the  statute  and  the  Constitution."  This  argu- 
ment is  not  convincing.  Admitting  that  either  one  or  the  other  of  the  two 
opinions  must  be  conceded  to  the  dissenting  justices,  it  does  not  follow  that 
the  doctrine  of  reasonable  doubt  is  shown  to  be  repudiated.  The  question 
which  the  Supreme  Court,  as  a  court,  has  to  decide  is  as  to  the  existence 
of  this  reasonable  doubt.  There  may  of  course  be  a  difference  of  opinion 
as  to  this,  but  it  is  still  this  fact  which  the  court  seeks  to  determine  and 
which  controls  its  decision.  It  is  no  more  proper  to  say  that  the  principle 
is  repudiated  when  the  court  is  not  unanimous,  than  to  hold  that  in  passing 
by  a  divided  court  upon  a  question  of  contributory  negligence,  the  principle 
of  reasonable  doubt  is  not  applied. 

As  to  whether  in  recent  years  courts  in  fact  are  guided  by  the  rule 
under  consideration,  see  article  by  W.  F,  Dodd,  ■  Growth  of  Judicial  Power," 
in  Pol.  Sci.  Quar.  XXIV,  193. 


Principles  of  Constitutional  Construction.  23 

decision.  The  Supreme  Court  in  passing  finally  upon  this  point 
is  not,  then,  called  upon  to  review  the  act  of  a  co-ordinate  depart- 
ment, but  has  to  decide  between  the  conflicting  claims  of  two 
governments,  and,  quite  properly,  feels  itself  at  liberty  to  decide 
the  point  as  an  original  proposition;  namely,  upon  the  basis  of  its 
own  judgment  as  to  what  is  the  most  reasonable  construction  of 
the  constitutional  provisions  involved. 

If,  however,  the  state  law,  whose  constitutionality  is  questioned, 
is  with  reference  to  a  matter  admittedly  within  the  province  of 
the  States,  and  the  question  is  simply  whether  that  power  has 
been  properly  exercised,  there  is  held  to  be  a  strong  presumption 
that  the  act  is  constitutional.  Thus,  for  example,  if  it  is  a  ques- 
tion whether  the  States  have  the  power  to  regulate  interstate  com- 
merce, or  to  tax  a  national  bank,  or  to  naturalize  aliens,  or  enact 
bankruptcy  laws,  there  is  no  presumption  in  favor  of  the  consti- 
tutionality of  acts  in  which'  the  state  power  is  asserted.  If, 
however,  it  is  a  question,  for  example,  whether  the  police  powers, 
admittedly  belonging  to  the  States,  have  been  constitutionally 
exercised,  the  presumption  is  that  they  have  been  so  exercised. 

An  excellent  illustration  of  this  last,  is  seen  in  the  treatment 
by  the  Supreme  Court  of  the  oleomargarine  laws  of  Pennsylvania 
in  the  case  of  Powell  v.  Pennsylvania,20  decided  in  1887.  The 
plaintiff  in  error  had  been  indicted  for  selling  oleomargarine, 
plainly  marked  as  such,  in  violation  of  a  Pennsylvania  law 
absolutely  forbidding  the  sale  and  production  of  that  commodity 
within  the  State.  Powell  offered  to  prove  that  the  oleomargarine 
was  pure  and  as  wholesome  as  butter,  and  that,  in  fact,  it 
differed  from  butter  only  in  that  it  had  a  slightly  smaller 
per  cent  of  a  substance  termed  butterine,  which  gave  a  flavor 
to  but  had  nothing  to  do  with  the  wholesomeness  of  the 
product.  He  claimed,  therefore,  that  a  law  forbidding  the 
production  and  sale  of  this  article  was  not  a  proper  exercise 
of  the  police  powers  of  the  State,  and  operated  to  deprive 
him  of  that  liberty  and  property  which  the  Fourteenth  Amend- 
ment to  the  federal  Constitution  guaranteed  him.     The  Supreme 

M127  U.  S.  678;  8  Sup.  Ct.  Rep.  002;  32  L,  ed.  253. 


24  United  States  Constitutional  Law. 

Court  of  the  United  States,  without  questioning  the  facts  asserted 
regarding  the  wholesomeness  of  oleomargarine,  upheld  the  state 
law,  declaring  that  it  could  not  "  adjudge  that  the  defendant's 
rights  of  liberty  and  property  have  been  infringed  by  the  statute 
of  Pennsylvania,  without  holding  that,  although  it  may  have  been 
enacted  in  good  faith  for  the  objects  expressed  in  its  title,  namely, 
to  protect  the  public  health  and  prevent  the  adulteration  of  dairy 
products  and  fraud  in  the  sale  thereof,  it  has,  in  fact,  no  real  or 
substantial  relation  to  those  objects."  This,  the  Supreme  Court 
said,  it  could  not  affirm.  "Whether  or  not  the  law  is  needed  as  a 
protection  to  the  public,  the  court  declared  to  be  a  question  of  fact 
belonging  primarily  to  the  state  legislature  to  determine.  "And," 
the  court  continued,  "  as  it  does  not  appear  upon  the  face  of  the 
statute,  or  from  any  facts  of  which  the  court  must  take  judicial 
cognizance,  that  it  infringes  rights  secured  by  the  fundamental 
law,  the  legislative  determination  of  those  questions  is  conclusive 
upon  the  courts." 

When  the  federal  Supreme  Court  is  called  upon  to  consider  the 
constitutionality  of  a  state  law  as  determined  by  its  conformity 
with  the  Constitution  of  the  State,  the  state  Constitution  is  con- 
strued as  having  for  its  general  purpose  the  placing  of  limitations 
upon  the  powers  of  the  legislature ;  whereas,  of  course,  the  federal 
•Constitution  is  viewed  as  a  grant  of  legislative  power.  In  other 
words,  whereas  the  federal  legislature  is  construed  to  have  only 
those  powers  granted  to  it  expressly  or  impliedly  by  the  federal 
Constitution,  the  state  legislatures  are  considered  to  possess  all 
powers  not  expressly  or  impliedly  withdrawn  from  them  by  the 
federal  or  respective  state  Constitutions. 

In  those  cases  in  which  the  courts  of  the  States  are  called  upon 
to  consider  the  constitutionality  of  the  acts  of  their  own  law- 
making bodies  as  tested  by  the  federal  or  their  own  state  Con- 
stitutions, they  of  course  have  to  deal  with  the  acts  of  a  depart- 
ment of  government  co-ordinate  in  power  with  themselves ;  and, 
therefore,  they  hold  themselves,  or  at  least  should  hold  themselves, 
hound  in  all  eases  to  give  to  the  laws  that  same  benefit  of  rational 
doubt  which  the  federal  Supreme  Court  gives  to  acts  of  Coneress. 


Principles  of  Constitutional  Construction.  25 

In  concluding  this  subject,  it  is  proper  to  observe  that  this  pre- 
liminary legislative  or  executive  interpretation  of  constitutional 
]  owx  rs  having  such  an  importance  as  we  have  seen  attached  to  itr 
the  responsibility  for  its  proper  exercise  is  proportionately  great. 
Those  legislators,  therefore,  who  vote  for  a  measure  without  being 
ivineed  of  its  constitutionality,  and  excuse  them- 
selves upon  the  ground  that,  if  their  aortion  is  not  valid,  the  courts 
have  the  opportunity  to  so  declare,  are  recreant  to  their  duty.  Xot 
only,  as  we  have  seen,  may  serious  consequences  follow  from  these 
before  their  invalidity  is  judicially  determined,  but,  what  is 
o£  still  more  importance,  an  unfortunate  burden  is  thrown  upon 
the  courts.  Xo  popular  government  can  successfully  endure  in 
which  the  decisions  of  its  courts  do  not  receive  the  general  ap- 
proval of  the  citizen  body.  But  if  legislatures  recklessly  pass 
measures  ostensibly  for  the  benefit  of  the  masses,  but  invalid  when 
tested  by  the  fundamental  law,  the  odium  of  defeating  these  meas- 
ures is  thrown  upon  the  courts,  and  a  popular  objection  to  and 
of  these  courts  created.  For,  of  course,  the  people  gen- 
erally cannot  be  expected  to  appreciate  the  constitutional  questions 
involved.  All  that  they  can  see  and  appreciate  is  that  their  legis- 
lative representatives  have  enacted  a  measure  in  their  interests, 
which  the  courts  have  declined  to  recognize  as  valid. 

§  11.  The  Force  of  Contemporaneous  or  Long  Continued  Legis- 
lative Interpretation. 

The  presumption  of  constitutionality  which  attaches  to  an  act 
of  Congress  is  increased  when  the  legislative  interpretation  has 
been  frequently  applied  during  a  considerable  number  of  years. 
or  when  it  dates  from  a  period  practically  contemporaneous  with 
the  adoption  of  the  Constitution,  or  when,  based  upon  a  confidence 
in  its  correctness,  many  and  important  public  and  private  rights 
have  been  fixed. 

Tn  United  States  v.  State  Bank21  the  court,  speaking  through 
Justice  Story,  say:  u  Tt  is  not  unimportant  to  state  that  the 
construction  which  we  have  given  to  the  terms  of  the  act  is  that 

n6  Pot.  20:  S  L.  ed.  308. 


26  United  States  Constitutional  Law. 

which  is  understood  to  have  been  practically  acted  upon  by  the 
government,  as  well  as  by  individuals,  ever  since  its  enactment. 
]\Iany  estates,  as  well  of  deceased  persons,  as  of  persons  insolvent 
who  have  made  general  assignments,  have  been  settled  upon  the 
footing  of  its  correctness.  A  practice  so  long  and  so  general 
would,  of  itself,  furnish  strong  grounds  for  a  liberal  con- 
sideration, and  could  not  jiow  be  disturbed  without  introducing 
a  train  of  serious  mischiefs.  We  think  the  practice  was  founded 
in  the  true  exposition  of  the  terms  and  intent  of  the  act,  but  if  it 
were  susceptible  of  some  doubt,  so  long  an  acquiescence  in  it  would 
justify  us  in  yielding  to  it  as  a  safe  and  reasonable  explanation." 

The  foregoing  had  reference  to  the  construction  of  a  statute,  but 
the  same  reasoning  is  applicable  to  the  Constitution. 

In  Lithographic  Company  v.  Sarony22  the  court  declare:  "  The 
construction  placed  upon  the  Constitution  by  the  first  act  of  1790 
and  the  act  of  1802  by  the  men  who  were  contemporary  with  its 
formation,  many  of  whom  were  members  of  the  Convention  who 
framed  it,  is  of  itself  entitled  to  very  great  weight,  and  when  it  is 
remembered  that  the  rights  thus  established  have  not  been  disputed 
during  a  period  of  nearly  a  century,  it  is  almost  conclusive.23 

§  12.  Legislative  and  Executive  Practice  Not  Absolutely  Bind- 
ing. 

The  Supreme  Court  has,  however,  never  held  itself  absolutely 
bound  by  a  legislative  or  executive  construction  (political  ques- 
tions excepted)  however  long  acquiesced  in,  or  however  nearly 
contemporaneous  its  first  statement  with  the  adoption  of  the  Con- 
stitution.24 


22  111  U.  S.  53;  4  Sup,  Ct.  Rep.  279;   28  L.  ed.  349. 

23  See  also  Stuart  v.  Laird,  1  Cr.  299;  2  L.  ed.  115. 

24  In  Swift  v.  United  States  (105  U.  S.  691;  26  L.  ed.  1108)  the  court  say: 
"The  rule  which  gives  determining  weight  to  contemporaneous  construction 
put  upon  a  statute  by  those  charged  with  its  execution  applies  only  in 
cases  of  ambiguity  and  doubt." 

"Contemporary  construction,"  says  Story,  in  his  Commentaries  (§  407), 
"is  properly  resorted  to,  to  illustrate,  and  confirm  the  text,  to  explain  a 
doubtful  phrase,  or  to  expound  an  obscure  clause;  and  in  proportion  to  the 
uniformity  and  universal. ty  of  that  construction,  and  the  known  ability  and 


Principles  of  Constitutional  Construction.  27 

§  13.  Extrinsic  Evidence. 

Generally  speaking,  in  the  construction  of  the  Constitution  the 
well  known  distinctions  between  latent  and  patent  ambiguities, 
and  between  the  use  of  extrinsic  and  intrinsic  evidence  apply. 
"Where  the  language  of  the  instrument  is  itself  indefinite  or  is  such 
that  more  than  one  meaning  may,  by  grammatical  construction,  be 
drawn  from  its  terms,  the  courts  base  their  determinations  upon 
the  language  and  provisions  found  within  the  four  corners  of  the 
instrument,  and  without  resort  to  extrinsic  evidence.  The  govern- 
ing point  is  as  to  what  is  actually  written.  If  a  given  power  may 
rationally,  logically,  and  grammatically  be  construed  as  granted 
by  a  given  provision,  then  it  is  of  no  countervailing  force  to  adduce 
tho  fact  that  such  was  not  the  intention  of  those  by  whom  the 
instrument  of  government  was  established.  Thus,  six  years  after 
the  adoption  of  our  Constitution,  the  judicial  power  of  the  federal 
courts  was  construed  to  extend  to  a  case  in  which  a  State  was 
defendant  in  a  suit  brought  by  a  private  individual,  and  support 
for  such  construction  was  undoubtedly  supplied  by  the  written 
word.  That  such,  however,  was  not  the  intention  of  those  by 
whom  the  Constitution  was  framed  and  ratified  is  quite  certain, 
as  was  demonstrated  by  the  promptness  and  unanimity  with  which 
the  Eleventh  Amendment  was  adopted,  preventing  a  future 
similar  construction. 

talents  of  those,  by  whom  it  was  given,  is  the  credit  to  which  it  is  entitled. 
It  can  never  abrogate  the  text;  it  can  never  fritter  away  the  obvious  sense; 
it  can  never  narrow  down  its  true  limitations,  it  can  never  enlarge  its  natural 
boundaries." 

In  United  States  v.  Alger  (152  U.  S.  384;  14  Sup.  Ct.  Rep.  635;  38  L.  ed. 
488)  the  court  say:  "As  the  meaning  of  the  statute  as  applied  to  these 
cases,  appears  to  this  court  to  be  perfectly  clear,  no  practice  inconsistent 
witli  that  meaning  can  have  any  effect." 

In  Fairbanks  v.  United  States  (181  U.  S.  283;  21  Sup.  Ct.  Rep.  648; 
45  L.  ed.  862)  the  constructive  force  to  be  given  to  legislative  and  executive 
practice  is  reviewed  at  length.  With  reference  to  the  principle  that  the 
judiciary  cannot  be  conclusively  bound  thereby  the  court  say:  "From  this 
resting  of  our  decisions  it  clearly  appears  that  practical  construction  is 
relied  upon  only  in  cases  of  doubt." 


28  United  States  Constitutional  Law. 

§  14.  Technical  Terms. 

When,  however,  there  is  no  ambiguity  of  grammatical  construc- 
tion, but  the  words  themselves  require  definition,  recourse  is  prop- 
erly had  to  extrinsic  evidence.  Here  it  is  necessary  to  learn  from 
extrinsic  sources  the  meaning  usually  attached  to  these  words  at 
the  time  the  Constitution  was  framed  and,  presumably,  by  those 
who  framed  and  adopted  the  Constitution.  Examples  of  such 
technical  terms  are  "  letters  of  marque  and  reprisal,"  "  ex  post 
facto,"  "  bill  of  attainder,"  "  bankruptcy,"  u  admiralty,"  "  equity," 
"  direct  tax,"  "  duties,"  "  imposts,"  "  excises,"  "  piracy,"  "  habeas 
corpus,"  "  citizen,"  "  alliance,"  "  confederation,"  li  republican 
form  of  government,"  "  infamous  crime,"  "  commerce,"  etc.  The 
technical  term  "  treason  "  is  defined  in  the  Constitution  itself. 

One  of  the  principal  questions  involved  in  the  Dred  Scott  case 
was  as  to  the  definition  of  the  term  "  citizens  of  different  States  " 
as  employed  in  Article  III  of  the  Constitution.  The  Insular  Cases 
in  considerable  measure  turned  upon  the  meaning  to  be  ascribed 
to  the  expression  "  United  States."  In  Texas  v.  White  it  was 
necessary  to  enter  into  a  careful  definition  of  the  terms  "  state  " 
and  "  government "  in  order  clearly  to  distinguish  them. 

As  has  been  repeatedly  declared  by  the  courts  the  best  rule  for 
interpreting  the  technical  terms  employed  in  the  Constitution  is 
to  give  to  them  the  meaning  which  they  had  at  the  time  that  in- 
strument was  framed  and  adopted.  When  the  terms  are  technical 
law  terms  they  are  to  be  given  the  meaning  attached  to  them  in 
the  English  common  law.25 

25  The  Supreme  Court  in  South  Carolina  v.  United  States  (199  TJ.  S.  437; 
26  Sup.  Ct.  Rep.  110;  50  L.  ed.  261)  states  this  doctrine  as  follows:  "It 
must  also  be  remembered  that  the  framers  of  the  Constitution  were  not  mere 
visionaries,  toying  with  speculations  or  theories,  but  practical  men  dealing 
with  the  facts  of  political  life  as  they  understood  them;  putting  into  form 
th^  government  they  were  creating  and  prescribing,  in  language  clear  and 
intelligible,  the  powers  that  government  was  to  take.  Mr.  Chief  Justice 
Marshall,  in  Gibbons  v.  Ogden  (9  Wheat.  1,  188:  6  "L.  ed.  23)  well  declared: 
'  As  men  whose  intentions  require  no  concealment  generally  employ  the  words 
which  most  directly  and  aptly  express  the  ideas  they  intend  to  convey,  the 
enlightened  patriots  who  framed  our  Constitution,  and  the  people  who  adopted 
it,  must  be  understood  to  have  employed  words  in  their  natural  sense,  and  to 


Principles  of  Coxstititioxal  Coxstructiox.  29 

Iu  a  few  instances  it  is,  however,  to  be  observed,  that  the 
Supreme  Court  has  refused  to  give  to  technical  terms  the  mean- 
ings attached  to  them  in  1780  by  the  common  law.  This  has  been 
so  especially  with  reference  to  the  words  "  admiralty "  and 
M  bankruptcy  "  both  of  which  terms  have  been  given  a  broader 
meaning  than  that  furnished  by  the  English  common  law.  Com- 
menting upon  this  Pomeroy  properly  says :  "  The  true  rule  would 
seem  to  be  this:  Where  words  having  a  well  known,  technical 
By  the  English  law  are  used  in  the  Constitution,  and  these 
words  are  keys  to  the  clauses  which  protect  the  private  rights  and 
liberties  of  the  people,  and  especially  of  clauses  which  impose  di- 
rect restraints  upon  the  government  in  respect  of  such  rights  and 
liberties,  and  the  technical  sense  itself  is  necessary  for  the  com- 
plete protection  of  the  individual  citizen,  this  signification  must 
still  be  retained  in  any  interpretation  of  these  provisions.  But 
on  the  other  hand,  where  words  which  had  a  technical  meaning  by 
the  English  law,  are  used  in  clauses  which  relate  to  the  general 
functions  of  legislation  and  administration,  and  to  the  .political 
organization  and  powers  of  the  government,  such  sense  must  be 


have  intended  what  they  have  said.'  One  other  fact  must  be  borne  in  mind, 
and  that  is,  in  interpreting  the  Constitution  we  must  have  recourse  to  the 
common  law.  As  said  by  Mr.  Justice  Matthews  in  Smith  v.  Alabama  (124 
U.  S.  465;  8  Sup.  Ct.  Rep.  564;  31  L.  ed.  508):  'The  interpretation  of  the 
Constitution  of  the  United  States  is  necessarily  influenced  by  the  fact  that 
its  provisions  are  framed  in  the  language  of  the  English  common  law, 
and  are  to  be  read  in  the  light  of  its  history.'  And  by  Mr.  Justice  Gray  in 
UnituJ  States  v.  Wong  Kim  Ark  (160  U.  S.  640:  18  Sup.  Ct.  Rep.  456; 
42  L.  ed.  800):  'In  this,  as  in  other  respects,  it  must  be  interpreted  in 
the  light  of  the  common  law,  the  principles  and  history  of  which  were 
familiarly  known  to  the  framers  of  the  Constitution.  Minor  v.  Happersett 
(21  Wall.  162:  22  L.  ed.  627  >  :  Ex  parte  Wilson  (114  XL  S.  417;  5  Sup. 
Ct.  Rep.  035;  20  L.  ed.  80)  ;  Boyd  v.  United  States  (116  XL  S.  616;  6  Sup. 
Ct.  Rep.  r,24:  20  L.  ed.  74G)  :  Smith  v.  Alabama  (124  U.  S.  465;  8  Sup.  Ct. 
Rep.  564:  31  L.  ed.  508).  The  language  of  the  Constitution,  as  has  been 
well  said,  could  not  1)6  xmderstood  without  reference  to  the  common  law. 
1  Kent.  Com.  336;  Bradley.  J.,  in  Moore  v.  United  States  (01  XL  S.  270;  23 
L.  ed.  346).'  To  determine  the  extent  of  the  grants  of  power,  we  must, 
therefore,  place  ourselves  in  the  position  of  the  men  who  framed  and  adopted 
the  Constitution,  and  inquire  what  they  must  have  understood  to  be  the 
meaning  and  scope  of  those  grants." 


30  United  States  Constitutional  Law. 

attributed  to  them  as  will  best  carry  out  the  design  of  the  whole 
organic  law,  whether  that  signification  be  broader  or  narrower 
than  the  one  which  had  received  the  sanction  of  the  English  Par- 
liament and  courts."  M 

§  15.  The   Interpretative   Value  of   Debates  in   Constitutional 
Conventions. 

When  it  is  necessary  and  proper  to  resort  to  extrinsic  evidence 
in  interpreting  the  Constitution,  an  important  source  of  such  evi- 
dence is  to  be  found  in  the  history  of  the  events  which  led  up  to 
its  adoption.  Of  special  importance  are  the  recorded  proceedings 
of  the  convention  which  drafted,  of  the  state  conventions  which 
ratified,  and  the  public  utterances  of  the  men  who  played  an 
influential  part  in  the  establishment  of,  the  Constitution.  Resort 
is  to  be  had,  however,  to  these  sources  only  with  caution,  and  only 
where  latent  ambiguities  are  to  be  resolved.  Cooley  has  stated  in 
a  manner  not  to  be  improved  upon  the  weight  properly  to  be 
ascribed  to  debates  in  conventions.  He  says :  "  When  the  inquiry 
is  directed  to  ascertaining  the  mischief  designed  to  be  remedied,  or 
the  purpose  sought  to  be  accomplished  by  a  particular  provision,  it 
may  be  proper  to  examine  the  proceedings  of  the  convention  which 
framed  the  instrument.  Where  the  proceedings  clearly  point 
out  the  purpose  of  the  provision,  the  aid  will  be  valuable  and  satis- 
factory ;  but  where  the  question  is  one  of  abstract  meaning,  it  will 
be  difficult  to  derive  from  this  source  much  reliable  assistance  in 
interpretation.  Every  member  of  such  a  convention  acts  upon  such 
motives  and  reasons  as  influence  him  personally,  and  the  motions 
and  debates  do  not  necessarily  indicate  the  purpose  of  a  majority 
of  a  convention  in  adopting  a  particular  clause.  It  is  quite  possi- 
ble for  a  clause  to  appear  so  clear  and  unambiguous  to  the  mem- 
bers of  a  convention  as  to  require  neither  discussion  nor  illustra- 
tion; and  the  few  remarks  made  concerning  it  in  the  convention 
might  have  a  plain  tendency  to  lead  directly  away  from  the  mean- 
ing in  the  minds  of  the  majority.    It  is  equally  possible  for  a  part 

26  Constitutional  Law,  10th  ed.,  p.  607.     See  also  idem,  p.  345. 


Principles  of  Constitutional  Construction.  31 

• 

of  the  members  to  accept  a  clause  in  one  sense  and  a  part  in 
another.  And  even  if  we  were  certain  we  had  attained  to  the  mean- 
ing of  the  convention,  it  is  by  no  means  to  be  allowed  a  controlling 
force,  especially  if  that  meaning  appears  not  to  be  the  one  which 
the  words  would  most  naturally  and  obviously  convey.  For  as  the 
Constitution  does  not  derive  its  force  from  the  convention  which 
framed,  but  from  the  people  who  ratified  it,  the  intent  to  be  ar- 
rived at  is  that  of  the  people,  and  it  is  not  to  be  supposed  that  they 
have  looked  for  any  dark  or  abstruse  meaning  in  the  words  em- 
ployed, but  rather  that  they  have  accepted  them  in  the  sense  most 
obvious  to  the  common  understanding,  and  ratified  the  instru- 
ment in  the  belief  that  that  was  the  sense  designed  to  be  conveyed 
These  proceedings,  therefore,  are  less  conclusive  of  the  proper  con- 
struction of  the  instrument  than  are  legislative  proceedings  of 
the  proper  construction  of  a  statute ;  since  in  the  latter  case  it  is 
the  intent  of  the  legislature  we  seek,  while  in  the  former  we  are 
endeavoring  to  arrive  at  the  intent  of  the  people  through  the  dis- 
cussions and  deliberations  of  their  representatives.  The  history  of 
the  calling  of  the  convention,  of  the  causes  which  led  to  it,  and  the 
discussions  and  issues  before  the  people  at  the  time  of  the  election 
of  the  delegates,  will  sometimes  be  quite  as  instructive  and  satis- 
factory as  anything  to  be  gathered  from  the  proceedings  of  the 
convention."  27 

§  16.  The  Federalist. 

What  has  been  said  regarding  the  interpretative  value  of  the 
debates  in  the  conventions  that  framed  and  ratified  the  Constitu- 
tion, and  the  value  of  contemporary  interpretation  thereof  by 
Congress  and  the  Executive,  applies  to  the  collection  of  essays 
published  under  the  title  of  The  Federalist.  This  is  true  pecu- 
liarly of  these  essays  not  only  because  of  their  respective  authors 
—  Hamilton,  Madison  and  Jay  —  but  because  of  the  purpose  for 
which  they  were  prepared  and  published,  namely,  to  persuade  the 
several  state  conventions  to  ratify  the  Constitution.  Having  this 
construction  of  the  Constitution  before  them,  there  are  consider- 

w  Constitutional  Limitations,  7th  ed.,  p.  101. 


32  United  States  Constitutional  Law. 

able,  though  not  conclusive,  grounds  for  holding  that,  where  the 
meaning  thus  published  was  not  repudiated,  this  was  the  construc- 
tion intended  by  those  who  put  the  Constitution  into  force.-" 

The  case  of  Chisholm  v.  Georgia29  is,  however,  a  conspicuous 
instance  in  which  a  view  advanced  in  The  Federalist  (that  a  State 
would  not  be  suable  in  the  federal  courts  at  the  instance  of  a  citi- 
zen of  another  State)  was  repudiated  by  the  Supreme  Court. 

§  17.  History  of  the  Times. 

The  case  of  Prigg  v.  Pennsylvania30  illustrates  the  value  of  a 
resort  to  the  "  history  of  the  times  "  and  to  the  general  object 
sought  to  be  obtained,  in  interpreting  an  ambiguous  constitutional 
provision.  In  this  case,  which  involved  the  question  as  to  the  ex- 
clusiveness  of  the  power  granted  to  the  Federal  Government  under 
the  fugitive  slave  clause  of  the  Constitution,33  Justice  Story  said : 
"  Historically  it  is  well  known  that  the  object  of  this  clause  was 
to  secure  to  the  citizens  of  the  slaveholding  States  the  complete 
right  and  title  of  ownership  in  their  slaves,  as  property, 
in  every  State  in  the  Union  into  which  they  might  escape  from 
the  State  where  they  were  held  in  servitude.  .  .  .  How  then 
are  we  to  interpret  the  language  of  the  clause  ?  The  true 
answer  is,  in  such  a  manner,  as,  consistently  with  the  words, 
shall  fully  and  completely  effectuate  the  whole  object  of  it.  If 
by  one  mode  of  interpretation  the  right  must  become  shadowy 

28  In  Cohens  v.  Virginia  (6  Wh.  264;  5  L.  ed.  527)  Marshall  says:  "The 
opinion  of  The  Federalist  has  always  been  considered  as  of  great  authority. 
It  is  a  complete  commentary  on  our  Constitution;  and  is  appealed  to  by  all 
parties  in  the  questions  to  which  that  instrument  has  given  birth.  Its  in- 
trinsic merit  entitles  it  to  this  high  rank;  and  the  part  two  of  its  authors 
performed  in  framing  the  Constitution,  puts  it  very  much  in  their  power 
to  explain  the  views  with  which  it  was  framed.  These  essays  having  been 
published  while  the  Constitution  was  before  the  nation  for  adoption  or 
rejection,  and  having  been  written  in  answer  to  objections  founded  entirely 
on  the  extent  of  its  powers,  and  on  its  diminution  of  state  sovereignty,  are 
entitled  to  the  more  consideration  where  they  frankly  avow  that  the  power 
objected  to  is  given,  and  defend  it." 

29  2  Dall.  419;   1  L.  ed.  440. 

30  16  Tet.  539;   10  L.  ed.  1060. 
si  Art.  IV,  Sec.  II,  CI.  3. 


Principles  of  Constitutional  Construction.  33 

and  unsubstantial,  and  without  any  remedial  powers  adequate  to 
the  end,  and  by  another  mode  it  will  attain  its  just  end  and  secure 
its  manifest  purpose,  it  would  seem  upon  principles  of  reasoning 
absolutely  irresistible  that  the  latter  ought  to  obtain.  Ko  court  of 
justice  can  be  authorized  so  to  construe  any  clause  of  the  Consti- 
tution as  to  defeat  its  obvious  ends,  when  another  construction 
equally  accordant  with  the  words  and  sense  thereof  will  enforce 
and  protect  them." 

Here  it  is  to  be  observed  that  Story  properly  introduces  the 
qualifying  condition  that  the  construction  supported  by  the  history 
of  the  times  in  which,  and  the  purpose  for  which,  it  was  formed, 
must,  as  compared  with  another  possible  construction,  be  "  equally 
accordant  with  the  words  and  sense  thereof."  It  is  thus  to  be 
emphasized  that  extrinsic  evidence  may  never  be  used  to  support 
an  interpretation  which  the  written  word  does  not  upon  its  face 
reasonably  permit.  In  other  words,  extrinsic  evidence  may  prop- 
erly be  used  to  decide  between  two  possible  constructions  of  the 
written  word,  but  not  to  add  to  or  subtract  from  its  express  pro- 
visions. 

§  IS.  The  Interpretative  Value  of  Legislative  Debates. 

As  in  the  c#se  of  the  examination  of  the  Constitution  itself,  the 
courts  in  considering  the  constitutionality  of  a  statute  hold  them- 
selves bound  by  the  words  of  the  statute,  that  is,  they  determine 
the  intent  of  the  legislature  by  the  words  it  has  employed.  And, 
therefore,  they  will  not  resort  to  legislative  debates  except  where 
necessary  to  resolve  a  latent  ambiguity. 

In  Maxwell  v.  Dow33  the  court  say :  "  Counsel  for  plaintiff  in 
error  has  cited  from  the  speech  of  one  of  the  Senators  of  the  United 
States,  made  in  the  Senate  when  the  proposed  Fourteenth  Amend- 
ment was  under  consideration  by  that  body.  .  .  .  What  speeches 
were  made  by  other  Senators  and  by  Representatives  in  the  House 

32  Query,  as  to  whether  the  resort  to  "  history  of  the  times"  was  legitimate 
in  the  Slaughter  House  Cases  for  the  interpretation  of  the  clause  of  the 
Fourteenth  Amendment  that  "  no  state  shall  make  or  enforce  any  law  which 
shall  abridge,  the  privileges  or  immunities  of  citizens  of  the  United  States." 

33  176  U.  S.  581;  20  Sup.  Ct.  Rep.  448;  44  L.  ed.  597. 

3 


34  United  States  Constitutional  Law. 

upon  this  subject  is  not  stated  by  counsel,  nor  does  he  state  what 
construction  was  given  to  it,  if  any,  by  other  members  of  Con- 
gress. It  is  clear  that  what  is  said  in  Congress  upon  such  an 
occasion  may  or  not  express  the  views  of  the  majority  of  those 
who  favor  the  adoption  of  the  measure  which  may  be  before  that 
body  and  the  question  whether  the  proposed  amendment  itself 
expresses  the  meaning  which  those  who  spoke  in  its  favor  may 
have  assumed  that  it  did,  is  one  to  be  determined  by  the  language 
actually  therein  used,  and  not  by  the  speeches  made  regarding  it. 
What  individual  Senators  or  Representatives  may  have  urged  in 
debate,  in  regard  to  the  meaning  to  be  given  to  a  proposed  con- 
stitutional amendment,  or  bill,  or  resolution,  does  not  furnish  a, 
firm  ground  for  its  proper  construction,  nor  is  it  important  as 
explanatory  of  the  grounds  upon  which  the  members  voted  in 
adopting  it.34  In  the  cases  of  a  constitutional  amendment  it  is 
of  less  materiality  than  in  that  of  an  ordinary  bill  or  resolution. 
A  constitutional  amendment  must  be  agreed  to,  not  only  by  Sena- 
tors and  Representatives,  but  it  must  be  ratified  by  the  legis- 
latures, or  by  conventions,  in  three-fourths  of  the  States  before 
such  an  amendment  can  take  effect.  The  safe  way  is  to  read  its 
language  in  connection  with  the  known  condition  of  affairs  out  of 
which  the  occasion  for  its  adoption  may  have  ariseh,  and  then  to 
construe  it,  if  there  be  therein  any  doubtful  expressions,  in  a  way 
so  far  as  is  reasonably  possible,  to  forward  the  known  purpose 
or  object  for  which  the  Amendment  was  adopted.  This  rule  could 
not,  of  course,  be  so  used  as  to  limit  the  force  and  effect  of  an 
amendment  in  a  manner  which  the  plain  and  unambiguous  lan- 
guage used  therein  would  not  justify  or  permit."35 

3*  Citing  United  States  v.  Trans-Missouri  Freight  Association  (1G6  U.  S. 
290;  17  Sup.  Ct.  Rep.  540;  41  L.  ed.  1007);  Dunlap  v.  United  States 
(173  U.  S.  65;   19  Sup.  Ct.  Rep.  319;  43  L.  ed.  616). 

35  In  United  States  v.  Trans-Missouri  Freight  Association  (166  U.  S.  290; 
17  Sup.  Ct.  Rep.  540;  41  L.  ed.  1007)  both  the  majority  and  minority  opinions 
detail  at  some  length  the  congressional  history  of  the  so-called  Anti-Trust 
Act  of  1590,  but  both  admit  that  this  is  not  a  legitimate  source  of  information. 
The  majority  justices  after  their  review  of  the  course  of  the  bill  through  Con- 
gress and  the  debates  attendant  thereupon,  argue  that  it  is  impossible  in  fact 
to  say  what  were  the  views  of  the  majority  of  the  members  of  each  House  of 


Pkixciples  of  Constitutional  Coxsteuction.  35 

In  1833,  Mr.  Calhoun  when  voting  in  the  Senate  upon  the 
tariff  act  of  that  year  said  that  he  wished  it  distinctly  under- 
stood that  he  did  so  upon  the  condition  that  a  certain  construction 
and  application  should  be  given  to  the  measure.  Other  Senators, 
however,  promptly  and  properly  pointed  out  that  such  a  qualifi- 
cation would  be  void  of  any  force,  as  the  act  would,  after  enact- 
ment, necessarily  be  given  such  a  meaning  as  its  words  and  the 
Constitution  would  permit.36 

§  19.  Resort  to  the  Preamble  for  Purpose  of  Construction. 

The  value  of  the  Preamble  to  the  Constitution  for  purposes  of 
construction  is  similar  to  that  given  to  the  preamble  of  an  ordi- 
nary statute.  It  may  not  be  relied  upon  for  giving  to  the  body 
of  the  instrument  a  meaning  other  than  that  which  its  language 
plainly  imports,  but  may  be  resorted  to  in  cases  of  ambiguity, 
where  the  intention  of  the  framers  does  not  clearly  and  definitely 

Congress  in  relation  to  the  meaning  of  the  act,  and  add:  "There  is,  too,  a 
general  acquiescence  in  the  doctrine  that  debates  in  Congress  are  not  appro- 
priate sources  of  information  from  which  to  discover  the  meaning  of  the 
language  of  a  statute  passed  by  that  body  (United  States  v.  U.  P.  Railroad 
91  U.  S.  72;  23  L.  ed.  324;  Aldridge  v.  Williams,  3  How.  9;  11  L.  ed. 
469;  Taney,  Chief  Justice;  Mitchell  v.  Great  Works  Milling  and  Manufactur- 
ing Co.,  2  Story,  648;  Queen  v.  Hertford  College,  3  Q.  B.  D.  693).  The  reason 
is  that  it  is  impossible  to  determine  with  certainty  what  construction  was  put 
upon  an  act  by  the  memhers  of  a  legislative  body  that  passed  it  by  resorting 
to  the  speeches  of  individual  members  thereof.  Those  who  did  not  speak  may 
not  have  agreed  with  those  who  did;  and  those  who  spoke  might  differ  from 
each  other;  the  result  being  that  the  only  proper  way  to  construe  a  legislative 
act  is  from  the  language  used  in  the  act,  and,  upon  occasion,  by  a  resort  to 
the  history  of  the  times  when  it  was  passed."  The  opinion  then  goes  on  to 
(how  that  from  "  the  history  cf  the  times  "  it  would  appear  that  the  act  in 
>n  was  intended  to  have  the  meaning  which  the  court  attaches  to  it. 

Justice  Brown  in  Downes  v.  Bidwell  (182  U.  S.  244;  21  Sup.  Ct.  Rep.  770; 
45  L.  ed.  1088)  says:  "The  arguments  of  individual  legislators  are  no  proper 
subject  for  judicial  comment.  They  are  so  often  influenced  by  personal  or 
political  considerations,  or  by  the  assumed  necessities  of  the  situation,  that 
they  can  hardly  be  considered  even  as  the  deliberate  views  of  the  persons  who 
make  them,  much  less  as  declaring  the  construction  to  be  put  upon  the  Con- . 
ititution  by  the  Courts."  (Citing  United  States  v.  Union  P.  R.  Co.,  91  U.  S. 
72:  23  L.  ed.  324.) 

36  Benton,  Thirty  Years'  View,  I,  3-J!». 


36  United  States  Coxstitutioxal  Law. 

appear.  As  Story  says :  "  The  preamble  of  a  statute  is  a  key  to 
open  the  mind  of  the  makers  as  to  the  mischiefs  which  are  to  be 
remedied,  and  the  objects  which  are  to  be  accomplished  by  the 
provisions  of  the,  statute."  37 

Special  significance  has  at  various  times  been  attached  to 
several  of  the  expressions  employed  in  the  Preamble  to  the  Con- 
stitution.    These  expressions  are: 

1.  The  use  of  the  phrase  "  We,  the  People  of  the  United 
States,"  as  indicating  the  legislative  source  of  the  Constitution. 

2.  The  denomination  of  the  instrument  as  a  "  Constitution." 

3.  -The  description  of  the  federation  entered  into  as  "  a  more 
perfect  Union." 

4.  The  enumeration  of  "  the  common  defense  "  and  "  general 
welfare  "  among  the  objects  which  the  new  government  is  estab- 
lished to  promote. 

§  20.  "  We,  the  People." 

x\s  regards  the  phrase  "  We,  the  People,"  it  would  seem  that 
little  light  can  be  obtained  from  its  use,  except  to  fix  the  fact. 
which  no  one  has  attempted  to  deny,  that  the  new  government 
derived  its  right  to  be  from  the  consent  of  the  people  who  were 
to  be  controlled  by  it.  But  whether  by  "  We,  the  People  "  was 
meant  all  the  people  of  the  ratifying  States  considered  as  one 
body  politic,  or  whether  it  referred  to  the  people  as  organized  in 
several  commonwealth  communities,  it  is,  so  far  as  this  language 
is  concerned,  impossible  to  say. 

The  framers  of  the  Constitution  of  the  Southern  Confederacy 
avoided  this  ambiguity  by  declaring  in  the  Preamble:  "  We,  the 
People  of  the  Confederate  States,  each  State  acting  in  its  sover- 
eign and  independent  character,  in  order  to  form  a  permanent 
federal  government,  establish  justice  ...  do  ordain 
and  establish  this  Constitution  for  the  Confederate  States  of 
•America." 

Commenting  upon  this  change  in  phraseology,  Pomeroy  says: 
"  Thus   have    the    opponents   of   our    nationality  by   their   most 

37  Commentaries,  §  459. 


Principles  of  Constitutional  Construction.  37 

solemn  and  deliberate  act  conceded  the  correctness  of  the  con- 
struction which  has  been  placed  [by  the  Xorthern  States]  upon 
this  utterance  of  the  sovereign  people  of  the  United  States."  M 
This  is  by  no  means  a  correct  deduction.  It  was  quite  proper 
that  the  framers  of  the  Confederate  Constitution  should,  without 
conceding  the  correctness  of  the  construction  of  their  opponents, 
from  an  abundance  of  caution,  use  language  which  no  one  could 
■nstrue. 

In  Martin  v.  Hunter's  Lessee39  Justice  Story  says:  "The 
Constitution  of  the  United  States  was  ordained  and  established 
n<t  by  the  States  in  their  sovereign  capacities,  but  emphatically, 
as  rhe  preamble  of  the  Constitution  declares,  by  the  people  of  the 
United  States.  So  far  from  saying  that  it  is  established  by  the 
governments  of  the  several  States,  it  does  not  even  say  that  it  is 
established  by  the  people  of  the  several  States,  but  it  pronounces 
that  it  is  established  by  the  people  of  the  United  States  in  the 
aggregate.  .  .  .  Words  cannot  be  plainer  than  the  words 
used.'' 

This  last  statement  is  certainly  extreme.  It  is  indeed  made 
plain  that  the  Constitution  is  not  ratified  by  the  Governments  of 
the  individual  States,  but  it  is  not  clearly  indicated  whether  the 
ratifying  parties  are  to  be  considered  singly  or  as  a  composite 
whole.  And  in  contradiction  to  the  fact  that  a  single  political 
whole  was  meant  is  the  fact  that  in  ratifying  the  Constitution  the 
people  did  vote  by  States.** 

The  only  way  by  which  the  force  of  this  fact  is  avoided  is  by 
the  proposition  that  the  ratifying  state  conventions  acted  ad  hoc 
■a  agents  of  a  single  united  people.  But  this  argument  is  greatly 
weakened,  it*  Bet  absolutely  destroyed,  by  the  fact  that  only  those 
States  were  to  be  considered  members  of  the  new  Union  whose 
respective  people,  acting  in  convention,  should  ratify  the  Con- 
stitution. 

&  Constitutional  Laic.   §   95. 

39  1   Wh.  3<>4:   4  L.  ed.  07. 

*>The  fact  that  tli  re  not,  as  in  the  Articles  of  Confederation,  men- 

tioned, individually,  by  name.  i<  of  no  significance  for  the  reason  that  they 
could  not  be  so  mentioned  because  it  could  not  be  known  in  advance  which  of 
the  States  would  rati f v. 

62204 


38  United  States  Constitutional  Law. 

The  use  of  the  phrase  "  We,  the  People  of  the  United  States  " 
as  indicating  the  ordainers  and  establishes  of  the  Union,  is,  how- 
ever, of  significance  in  determining  the  nature  of  the  Union  that 
was  intended  to  be  created  when  taken  in  connection  with  the 
provision  of  Article  VII  that  the  Constitution  is  to  be  ratified, 
not  by  the  state  legislatures,  but  in  conventions,  for  it  indicates 
that  the  Union  was  one  that  the  state  legislatures  were  not  com- 
petent to  create ;  that,  in  other  words,  it  was  to  be  not  a  mere 
league  or  confederacy,  such  as  the  existing  state  governments 
might  enter  into,  but  a  fundamental  Union  resulting  in  the  crea- 
tion of  a  new  Xational  State  which,  according  to  the  political 
philosophy  of  that  date,  only  the  people  acting  in  their  original 
sovereign  capacity  were  able  to  create. 

§  21.  "  Constitution." 

The  fact  that  the  instrument  of  1789  is  termed  a  "  Constitu- 
tion "  has  by  some  been  taken  to  indicate  that  a  National  State, 
and  not  a  confederacy  of  States  was  intended  to  be  created.  Thus 
Webster  in  his  reply  to  Hayne  said:  "  They  [the  people  of  the 
United  States]  undertook  to  form  a  general  government  which 
should  stand  on  a  new  basis ;  not  a  confederacy,  not  a  league,  not 
a  compact  between  States,  but  a  Constitution."  And  in  his  reply 
to  Calhoun,  he  declared :  "  Sir,  I  must  say  to  the  honorable 
gentleman  that,  in  our  American  political  grammar,  Constitution 
is  a  noun  substantive;  it  imparts  a  distinct  and  clear  idea  of 
itself;  and  it  is  not  to  be  turned  into  a  poor,  ambiguous,  sense- 
less, unmeaning  adjective,  for  the  purpose  of  accommodating  any 
new  set  of  political  notions.  .  .  .  By  the  Constitution  we 
mean,  not  a  '  constitutional  compact,'  but  simply  and  directly  the 
Constitution,  the  fundamental  law;  and  if  there  be  one  word  in 
the  language  which  the  people  of  the  United  States  understand, 
it  is  that  word.''  And  later  he  says :  "  Does  it  call  itself  a  com- 
pact ?  Certainly  not.  Does  it  call  itself  a  league,  a  confederacy, 
or  subsisting  treaty  between  the  States?  Certainly  not.  But  it 
declares  itself  a  Constitution." 


Principles  of  Coxstitutioxal  Coxstructiox.  39 

By  members  of  the  school  of  Webster  weight  is  also  given  to 
the  fact  that  it  is  declared  that  the  people  of  the  United  States 
"  do  ordain  and  establish  "  and  not  that  they  "  do  contract "  or 
"  enter  into  a  treaty." 

The  writer  of  this  treatise  is  not  disposed  to  ascribe  much  value 
to  this  argument  of  Webster  based  upon  the  use  of  the  word 
"  Constitution."  At  most  it  can  only  have  a  corroborating  value. 
In  the  hrst  place,  it  is  by  no  means  certain  that  the  term  had, 
in  1789,  the  definite  technical  meaning  which  Webster  ascribes 
to  it.  And,  in  the  second  place,  and  more  significantly,  the  nature 
of  the  Union  provided  for  by  the  Constitution  is  properly  to  be 
determined  by  the  distribution  of  powers  actually  provided  for 
by  it.  and  not  by  the  title  that  may  have  been  given  to  it. 

The  description  of  the  new  federation  in  the  Preamble  as  "  a 
more  perfect  Union,"  has  occasionally  been  referred  to  as  an  ar- 
gument of  the  complete  sovereignty  of  the  United  States.  For 
example,  in  Texas  v.  White,41  Chief  Justice  Chase,  after  refer- 
ring to  the  fact  that  the  Articles  of  Confederation  had  provided 
for  a  perpetual  Union,  says:  "And  when  these  articles  were  found 
to  be  inadequate  to  the  exigencies  of  the  country,  the  Constitu- 
tion was  ordained  '  to  form  a  more  perfect  Union.'  It  is  difficult 
to  convey  the  idea  of  indissoluble  unity  more  clearly  than  by  these 
words.  What  can  be  more  indissoluble  if  a  perpetual  Union,  made 
more  perfect,  is  not  I  " 

§  22.  "  Common  Defense  and  General  Welfare." 

The  declaration  in  the  Preamble  that  the  new  Union  is  estab- 
lished for  the  common  defense  and  general  welfare,  and  the  grant 
by  Article  I,  Section  8,  of  the  Constitution  to  Congress  of  the 
power  "  to  levy  and  collect  taxes,  duties,  imports,  and  excises,  to 
pay  the  debts  and  provide  for  the  common  defense  and  general 
welfare  of  the  United  States,"  has  at  times  been  argued  to  be 
equivalent  to  a  grant  to  the  General  Government  of  all  powers, 
the  exercise  of  which  may  in  any  way  contribute  to  the  effectua- 
tion of  either  of  these  ends. 

«7  Wall.  700;  19  L.  ed.  227. 


40  United  States  Constitutional  Law. 

Especially  by  those  who  desire  to  magnify  the  powers  of  the 
Federal  Government  it  has  been  argued  that  instead  of  construing 
Section  8  of  Article  I  as  simply  the  grant  of  an  authority  to  raise 
revenue  in  order  to  pay  the  debts  and  provide  for  the  common 
defense  and  general  welfare  of  the  United  States,  it  should  be 
interpreted  as  conferring  upon  Congress  two  distinct  powers; 
namely :  ( 1 )  the  power  of  taxation ;  and  ( 2 )  the  power  to  provide 
for  the  common  defense  and  general  welfare.  And,  under  the 
latter  of  these  two  grants,  it  has  been  argued  that  the  Congress 
has  the  authority  to  exercise  any  power  that  it  may  think  neces- 
sary or  expedient  for  advancing  the  common  defense  or  the  gen- 
eral welfare  of  the  United  States.  It  scarcely  needs  be  said  that 
this  interpretation  has  not  been  accepted  by  the  courts.  Were 
this  view  to  be  accepted  the  government  of  the  United  States 
would  at  once  cease  to  be  one  of  the  enumerated  powers,  for  it 
would  then  be  .possible  to  justify  the  exercise  of  any  authority 
whatsoever  upon  the  ground  that  the  general  welfare  would 
thereby  be  advanced. 

§  23.  The  Constitution  is  to  be  Construed  as  a  Whole. 

Though  the  terms  of  the  Constitution  may  not  be  varied,  or 
its  grants  of  authority  limited  by  abstract  doctrines  of  private 
rights  and  of  political  justice  and  expediency,  the  words  of  each 
clause  are  to  be  interpreted  in  the  light  of  the  other  provisions 
of  the  Constitution.  The  Constitution  is  a  logical  whole,  each 
provision  of  which  is  an  integral  part  thereof,  and  it  is,  therefore, 
logically  proper,  and  indeed  imperative,  to  construe  one  part  in 
the  light  of  the  provisions  of  all  the  other  parts.42 

This  .principle  has  been  of  dominant  force  in  the  construction 
of  the  Constitution. 

The  principle  that  the  Constitution  is  to  be  interpreted  in  the 
light  of  the  general  purpose  for  the  attainment  of  which  it  was 

42  "  In  construing  the  Constitution  of  the  United  States  we  are,  in  the  first 
instance,  to  consider  what  are  its  nature  and  objects,  its  scope  and  design,  a3 
apparent  from  the  structure  of  the  instrument,  viewed  as  a  whole,  and  also 
viewed  in  its  component  parts."     Story,  Commaaurics,  §  405. 


Principles  of  Constitutional  Construction,         -il 

adopted  coupled  with  the  fact  that  many  of  its  terms  are  general 
in  character,  has  made  possible  and  legitimate  two  schools  of 
constructionists  —  the  Loose  or  Nationalistic  school,  and  the 
Strict  or  States'  Rights  school  —  each  dependent  upon  a  belief 
held  as  to  the  general  end  which  the  framers  of  the  Constitution 
had  in  mind  when  that  instrument  was  drafted.  The  Strict  or 
States'  Rights  constructionist  has  not  always  been  one  who  would 
deny  sovereignty  or  efficiency  to  the  National  Government  Thus, 
Taney,  a  leader  of  the  strict  constructionists,  never  for  a  moment 
doubted  the  sovereignty  of  the  General  Government,  or,  as  he 
showed  in  his  decision  in  Ableman  v.  Booth,  the  supremacy  of  its 
laws  and  of  its  agents  over  the  laws  and  agents  of  the  States.  He 
did  believe,  however,  that  the  sovereign  national  laws  should  be 
kept  within  as  limited  a  space  as  possible.  This  he  showed  from 
the  first  year  of  his  chief-justiceship. 

From  the  general  nature  and  intent  of  the  Constitution  have 
been  deduced,  not  to  mention  other  doctrines,  the  denial  of  the 
right  of  secession,  the  power  of  the  courts  to  hold  void  state  or 
federal  laws  contrary  to  the.  Constitution,  the  jurisdiction  of  the 
federal  courts  to  entertain  appeals  from  the  highest  state  courts 
in  cases  in  which  a  federal  right,  privilege,  or  immunity  has  been 
set  up  and  denied,  the  immunity  of  federal  governmental  agencies 
from  interference  on  the  part  of  the  States  by  taxation  or  other- 
wise, the  immunity  of  state  agencies  from  federal  taxation,  the 
exclusive  federal  jurisdiction  in  matters  of  naturalization,  and 
the  liberal  construction  of  "  implied  "  powers  generally. 

§  24.  So-called  "  Natural  "  or  "  Unwritten  Constitutional "  Laws 
Have  no  Constructive  Force. 
The    so-called    "  natural n    or    unwritten    laws    defining    the 
natural,  inalienable,  inherent  rights  of  the  citizen,  which,  it  is 
sometimes  claimed,  spring  from  the  very  nature  of  free  govern- 
ment, have  no  force  either  to  restrict  or  to  extend  the  written 
provisions  of  the  Constitution.     The  utmost  that  can  be  said  for 
1  them  is  that  where  the  language  of  the  Constitution  admits  of 
doubt,  it  is  to  be  presumed  that  authority  is  not  given  for  the 
violation  of  acknowledged  principles  of  justice  and  liberty. 


42  United  States  Constitutional  Law. 

In  not  a  few  instances,  especially  during  early  years,  the  bind- 
ing force  of  natural  laws  is  declared,  but  a  careful  examination 
of  these  cases  shows  that,  practically  without  exception,  the  doc- 
trine was  used  not  as  the  real  ratio  decidendi,  but  to  support, 
upon  grounds  of  justice  and  expediency,  a  decision  founded  upon 
the  written  constitutional  law. 

Prior  to  the  separation  from  England,  the  colonial  courts  were 
naturally  inclined  to  minimize  the  power  of  the  English  Parlia- 
ment, and,  therefore,  to  uphold  Coke's  dictum  in  the  famous 
Bonham  case  that  an  act  of  Parliament  contrary  to  natural  rights 
and  justice  is  void.  And  in  the  political  controversies  which  pre- 
ceded the  Revolution  the  doctrine  of  natural  rights  was  relied 
upon.43  It  would  appear,  however,  that,  though  often  asserted 
by  the  courts,  no  legislative  act  was  held  void  solely  because  it  was 
conceived  to  exceed  the  proper  limits  of  all  legislative  power.44 

When  American  independence  came,  it  was  to  be  expected  that 
the  Americans  would  apply  the  doctrine  of  natural  rights  and 
justice  in  limitation  of  the  law-making  powers  of  their  own  legis- 
latures, and  thus,  as  said,  we  do  find  the  principle  not  infre- 
quently stated,  during  the  early  years  of  the  Constitution.45  Even 
Chief  Justice  Marshall  lent  it,  upon  occasion,  a  qualified  sanc- 
tion. "  It  may  well  be  doubted,"  he  observes  in  Fletcher  v. 
Peck46  whether  the  nature  of  society  and  of  government  does 
not  prescribe  some  limits  to  the  legislative  power;  and  if  any  be 
prescribed,  where  they  are  to  be  found,  if  the  property  of  an 
individual,  fairly  and  honestly  acquired,  may  be  seized  without 
compensation  ?  To  the  [state]  legislature  all  legislative  power 
is  granted ;  but  the  question  whether  the  act  of  transferring  the 
property  of  an  individual  to  the  public  be  in  the  nature  of  the 
legislative  power  is  well  worthy  of  serious  reflection."  47 

43  For  instance  by  Otis  in  his  arguments  against  writs  of  assistance. 

<*  As  to  whether  the  South  Carolina  case  of  Bowman  v.  Middleton,  1  Bay, 
252,  was  such  a  case,  see  Thayer,  Cases  on  Const.  Law,  I,  53,  note  2. 

45  Cf.  Stimson,  Handbook  of  American  Labor  Laic,  p.  4,  note. 

4«6  Cr.  87;  3  L.  ed.  162. 

47  One  of  the  clearest  statements  of  the  doctrine,  though  given  obiter,  is 
that  of  Justice  Chase  in  Calder  v.  Bull  (3  DalL  386;  1  L.  ed.  648).  He  says: 
"  I  cannot  subscribe  to  the  omnipotence  of  a  state  legislature,  or  that  it  should 


Principles  of  Constitutional  Construction.  43 

§  25.  The  "  Spirit "  of  the  Constitution. 

Closely  allied  to  the  assertion  that  the  Constitution  is  to  be 
interpreted  in  the  light  of  "  natural  law,'"  is  the  doctrine  that  the 
fundamental  purpose  of  the  constitutional  fathers  was  the  erec- 
tion of  a  free  republican  government,  and  that,  therefore,  the 

be.  absolute  and  without  control ;  although  the  authority  should  not  be 
expressly  restrained  by  the  constitution,  or  fundamental  law  of  the  State.  The 
people  of  the  United  States  erected  their  Constitution  or  form  of  government, 
to  establish  justice,  to  promote  the  general  welfare,  and  secure  the  blessings 
of  liberty;  and  to  protect  their  persons  and  property  from  violence.  The 
purposes  for  which  men  enter  into  society  will  determine  the  nature  and  terms 
of  the  social  compact;  and  as  they  are  the  foundations  of  the  legislative  power 
they  will  decide  what  are  the  proper  objects  of  it.  The  nature  and  ends  of  the 
legislative  power  will  limit  the  exercise  of  it.  This  fundamental  principle 
follows  from  the  very  nature  of  our  republican  governments,  that  no  man 
should  be  compelled  to  do  what  the  laws  do  not  require;  nor  to  refrain  from 
acts  which  the  laws  permit.  There  are  acts  which  the  federal  or  state  legis- 
latures cannot  do  without  exceeding  their  authority.  There  are  certain  vital 
principles  in  our  free  republican  governments  which  will  determine  and  over- 
rule an  apparent  and  flagrant  abuse  of  legislative  power;  as  to  authorize 
manifest  injustice  by  positive  law;  or  to  take  away  that  security  for  personal 
liberty  or  private  property,  for  the  protection  whereof  the  government  was 
established.  An  act  of  the  legislature  (for  I  cannot  call  it  a  law)  contrary 
to  the  great  first  principle  of  the  social  compact,  cannot  be  considered  a  right- 
ful exercise  of  the  legislative  authority.  The  obligation  of  a  law  in  govern- 
ments established  on  express  compact,  and  on  republican  principles  must  be 
determined  by  the  nature  of  the  power  on  which  it  is  founded.  A  few  instances 
will  suffice  to  explain  what  I  mean.  A  law  that  punished  a  citizen  for  an 
innocent  action,  or,  in  other  words,  for  an  act  which,  when  done,  was  in 
violation  of  no  existing  law;  a  law  that  destroys,  or  impairs,  the  lawful 
private  contracts  of  citizens;  a  law  that  makes  a  man  a  judge  in  his  own 
cause;  a  law  that  takes  property  from  A  and  gives  it  to  B:  It  is  against  all 
reason  and  justice  for  a  people  to  entrust  a  legislature  with  such  powers; 
and,  therefore,  it  cannot  be  presumed  that  they  have  done  it.  The  genius,  the 
nature,  and  the  spirit  of  our  state  governments  amount  to  a  prohibition  of 
such  acts  of  legislation ;  and  the  general  principles  of  law  and  reason  forbid 
them.  The  legislature  may  enjoin,  permit,  forbid  and  punish ;  they  may 
declare  new  crimes;  and  establish  rules  of  conduct  for  all  its  citizens  in 
future  cases;  they  may  command  what  is  right  and  prohibit  what  is  wrong; 
but  they  cannot  change  innocence  into  guilt;  or  punish  innocence  as  a  crime; 
or  violate  the  right  of  an  antecedent  lawful  private  contract;  or  the  right  of 
private  property.  To  maintain  that  our  federal  or  state  legislature  possesses 
such  powers  if  they  hud  not  been  expressly  restrained,  would  in  my  opinion 
be  a  political  heresy,  altogether  inadmissible  in  our  free  republican  govern- 
ments." 


44  United  States  Constitutional  Law. 

Constitution  should,  whatever  its  express  terms  may  provide, 
never  be  so  construed  as  to  violate  the  abstract  principles  deducible 
from  this  fundamental  fact.  Generally  speaking,  whereas  the 
so-called  natural  laws  have  reference  to  the  .private  rights  of  the 
citizen,  the  protection  of  his  person  and  property;  these  prin- 
ciples claimed  to  be  deducible  from  the  spirit  of  the  Constitution 
as  the  framework  of  a  free  government  have  reference  to  the 
public  and  political  rights  of  the  individual. 

Stated  in  this  abstract,  philosophical  form,  the  doctrine  that 
the  "  Spirit "  of  the  Constitution  is  to  prevail  over  its  language 
has  no  more  legal  validity  than  has  the  doctrine  of  natural  law. 

§  26.  Applicability  of  Constitutional  Provisions  to  Modern  Con- 
ditions. 
In  construing  the  Constitution  the  very  proper  and  indeed  ab- 
solutely necessary  principle  has  been  followed  that  that  instrument 
was  intended  to  endure  for  all  time  and  that  its  grants  of  power 
are,  therefore,  to  be  interpreted  as  applicable  to  new  conditions 

Justice  Iredell  though  agreeing  in  the  decision  of  the  court  dissented  from 
Chase's  reasoning,  saying:  "If,  then,  a  government  composed  of  legislative, 
executive  and  judicial  departments  were  established  by  a  Constitution  which 
imposed  no  limits  on  the  legislative  power,  the  consequence  would  imme- 
diately be  that  whatever  the  legislative  should  choose  to  enact  would  be 
lawfully  enacted,  and  the  judicial  power  could  never  interfere  to  pronounce  it 
void.  It  is  true  that  some  speculative  jurists  have  held,  that  a  legislative  act 
against  natural  justice  must  in  itself  be  void;  but  I  cannot  think  that  under 
such  a  government,  any  court  of  justice  would  possess  a  power  to  pronounce  it 
80.  ...  If  any  act  of  Congress,  or  of  the  legislature  of  a  State,  violates 
those  constitutional  provisions  [of  the  United  States  Constitution],  it  is 
unquestionably  void;  though,  I  admit,  as  the  authority  to  declare  it  void  is 
of  a  delicate  and  awful  nature,  the  court  will  never  resort  to  that  authority 
but  in  a  clear  and  urgent  case.  If,  on  the  other  hand,  the  legislature  of  the 
Union,  or  the  legislature  of  any  member  of  the  Union,  shall  pass  a  law  within 
the  general  scope  of  their  constitutional  power,  the  court  cannot  pronounce  it 
void,  merely  because  it  is,  in  their  judgment,  contrary  to  the  principles  of 
natural  justice.  The  ideas  of  natural  justice  are  regulated  by  no  fixed 
standard;  the  ablest  and  purest  men  have  differed  upon  the  subject;  and  all 
that  the  court  could  properly  say  in  such  an  event,  would  be,  that  the  legis- 
lature (possessed  of  an  equal  right  of  opinion)  had  passed  an  act  which,  in 
the  opinion  of  the  judges,  was  inconsistent  with  the  abstract  principles  of 
natural  justice." 


Principles  of  Constitutional  Construction.  45 

as  they  arise.  By  this  is  not  meant,  however,  that  these  new- 
conditions  shall  in  any  case  justify  the  exercise  of  a  power  not 
granted,  or  create  a  limitation  not  imposed  by  the  Constitution, 
but  that  the  powers  which  are  granted  shall,  if  possible,  be  made 
applicable  to  these  new  conditions. 

Thus  the  grant  to  the  Federal  Government  of  the  control  over 
interstate  and  foreign  commerce  is  held  to  be  one  the  extent  of 
which,  though  not  its  importance,  is  not  varied  by  the  fact  that 
the  instrumentalities  by  which  it  is  carried  on  are  widely  different 
from  those  employed  in  1789.  On  the  other  hand,  if  the  writing 
of  insurance  policies,  or  the  dealing  in  banking  instruments  of 
exchange  were  not,  in  1789,  considered  interstate  commercial 
transactions,  and  by  reason  of  their  very  nature  could  not  prop- 
erly have  been,  no  augmentation  in  their  amount  and  no  increase 
in  the  practical  need  for  their  federal  regulation  will  justify  a 
construction  that  will  attach  an  interstate  commercial  character 
to  them,  and  thus  bring  .them  within  the  power  of  the  Federal 
Government  to  control. 

The  principle,  as  it  has  been  stated,  does  not  prevent  a  con- 
struction by  which  the  powers  and  limitations  enumerated  in  the 
Constitution  are  made  applicable  to  new  conditions  of  fact  which 
were  not  and  could  not  have  been  foreseen  by  those  who  adopted 
the  Constitution.  In  the  Dartmouth  case48  Marshall  says:  "It 
is  more  than  possible  that  the  preservation  of  the  rights  of  this 
description  was  not  particularly  in  the  minds  of  the  framers 
of  the  Constitution  when  the  clause  under  consideration,  impair- 
ment of  contracts,  was  introduced  into  that  instrument  .  .  . 
It  is  not  enough  to  say  that  this  particular  case  was  not  in  the 
mind  of  the  convention  when  the  article  was  framed,  nor  of 
the  American  people  when  it  was  adopted.  It  is  necessary  to" 
go  further  and  to  say  that  had  this  particular  case  been  suggested 
the  language  would  have  been  so  varied  as  to  exclude  it,  or  it 
would  have  been  made  a  special  exception.  The  case  being  within 
the  words  of  the  rule,  must  bo  within  its  operations  likewise, 
nnless  there  is  something  within   its  literal  construction  so  ob- 

4M  WTi.  518;  4  L.  ed.  629. 


46  United  States  Constitutional.  Law. 

viously  absurd  or  mischievous,  or  repugnant  to  the  general  spirit 
of  the  instrument,  as  to  justify  those  who  expounded  the  Con- 
stitution in  making  it  an  exception."  Again,  in  Re  Debs49  the 
court  say :  "  Constitutional  provisions  do  not  change,  but  their 
operation  extends  to  new  matters  as  the  modes  of  life  and 
habits  of  the  people  vary  with  each  succeeding  generation. 
The  law  of  the  common  carrier  is  the  same  to-day  as  when 
transportation  by  land  was  by  coach  and  wagon  and  on 
water  by  canal-boat  and  sailing  vessel,  yet  in  its  actual  operation 
it  touches  and  regulates  transportation  by  modes  then  unknown. 
Just  so  is  it  with  the  grant  to  the  ^National  Government  of  power 
over  interstate  commerce.  The  Constitution  has  not  changed. 
The  power  is  the  same.  But  it  operates  to-day  upon  modes  of 
interstate  commerce  then  unknown  to  the  fathers,  and  it  will 
operate  with  equal  force  upon  any  new  modes  of  such  commerce 
which  the  future  may  develop."  ^ 

«  158  U.  S.  5*64;  15  Sup.  Ct.  Rep.  900;  39  L.  ed.  1092. 

w  To  the  same  effect,  as  the  foregoing,  is  the  declaration  of  the  court  in 
South  Carolina  v.  United  States  (199  U.  S.  437;  26  Sup.  Ct.  Rep.  110;  50 
L.  ed.  261),  in  which  they  say:  "The  Constitution  is  a  written  instrument. 
As  such  its  meaning  does  not  alter.  That  which  it  meant  when  adopted,  it 
means  now.  Being  a  grant  of  powers  to  a  government,  its  language  is 
general;  and,  as  changes  come  in  social  and  political  life,  it  embraces  within 
its  grasp  all  new  conditions  which  are  within  the  scope  of  the  powers  in  tfrms 
conferred.  In  other  words,  while  the  powers  granted  do  not  change,  they  apply 
from  generation  to  generation  to  all  things  to  which  they  are  in  their  nature 
applicable.  This  in  no  manner  abridges  the  fact  of  its  changeless  nature  and 
meaning.  Those  things  which  are  within  its  grants  of  power,  as  those  grants 
were  understood  when  made,  are  still  within  them;  and  those  things  not 
within  them  remain  still  excluded.  As  said  by  Mr.  Chief  Justice  Taney  in 
Scott  v.  Sandford  ( 19  How.  393 ;  15  L.  ed.  691 ) ,  '  It  is  not  only  the  sanw  in 
words,  but  the  same  in  meaning,  and  delegates  the  same  power  to  the  govern- 
ment, and  reserves  and  secures  the  same  rights  and  privileges  to  the  citizen; 
and  in  its  present  form  it  speaks  not  only  in  the  same  words,  but  with  the 
same  meaning  and  intent  with  which  it  spoke  when  it  came  from  the  hands 
of  its  framers  and  was  voted  on  and  adopted  by  the  people  of  the  United 
States.  Any  other  rule  of  construction  would  abrogate  the  judicial  character 
of  this  court,  and  make  it  the  mere  reflex  of  the  popular  opinion  or  passion  of 
the  day.' " 

Justice  Story,  in  Martin  v.  Hunter's  Lessee  (1  Wh.  304;  4  L.  ed.  97),  dis- 
cussing the  principle  of  construction  to  be  applied  to  the  Constitution, 
declares:      "The    instrument    was   not    intended   to    provide   merely    for    the 


Principles  of  Constitutional  Construction.  47 

§  27.  The  Wilson-Roosevelt  Doctrine  of  Construction. 

A  doctrine  of  construction  radically  different  from  that  which 
has  just  been  stated,  and  which  has  never  been  accepted  by  the 
Supreme  Court,  is  that  originally  put  forth  by  James  Wilson  of 
Pennsylvania,  and  in  recent  years  urged  by  President  Roosevelt. 

This  doctrine  is,  that  when  a  subject  has  been  neither  ex- 
pressly excluded  from  the  regulating  power  of  the  Federal  Gov- 
ernment, nor  expressly  placed  within  the  exclusive  control  of  the 
States,  it  may  be  regulated  by  Congress  if  it  be,  or  become,  a 
matter  the  regulation  of  which  is  of  general  importance  to  the 
whole  nation,  and  at  the  same  time  a  matter  over  which  the 
States  are,  in  practical  fact,  unable  to  exercise  the  necessary  con- 
trolling power.  According,  then,  to  this  doctrine,  the  Xinth  and 
Tenth  Amendments  which  declare  that :  a  The  enumeration  in 
the  Constitution  of  certain  rights  shall  not  be  construed  to  deny 
or  disparage  others  retained  by  the  people,"  and  that  "  The 
powers  not  delegated  to  the  United  States  by  the  Constitution,  nor 
prohibited  by  it  to  the  States,  are  reserved  to  the  States  respect- 
ively, or  to  the  people,"  are  not  to  be  interpreted  as  reserving  to 
the  States,  or  to  the  people,  those  powers  which,  though  not 
granted  to  the  Federal  Government,  are,  in  fact,  such  as  are  of 
federal  importance  and  which  the  States  are  unable  effectively 
to  exercise. 

The  argument  of  James  "Wilson,  made  in  1785  when  the  United 
States  was  under  the  Articles  of  Confederation  but  applicable, 
a  fortiori,  to  the  present  Constitution,  is  in  the  following  lan- 
guage: ''Though  the  United  States  in  Congress  assembled  de- 
rive from  the  particular  States  no  power,  jurisdiction,  or  right 

exigencies  of  a  few  your*,  but  wU  to  endure  through  a  long  lapse  of  ages,  the 
events  el"  which  were  looked  up  in  the  inscrutable  purposes  of  Providence.  It 
could  not  be  foreseen  what  new  changes  and  modifications  of  power  might  be 
indispensable  to  effectuate  the  peneral  objects  of  the  charter;  and  restrictions 
and  specifications  which  at  the  present  might  seem  salutary  might  in  the/end 
prove  the  overthrow  of  the  system  itself.  Hence  its  powers  are  expressed  in 
general  terms,  leaving  to  the  legislature,  from  time  to  time,  to  adopt  its  own 
means  to  effectuate  legitimat  and  to  mold  and  model  the  exercise  of 

its  powers  as  its  own  wisdom  and  the  public  interests  should  require.'' 


48  United  States  Constitutional  Law. 

which  is  not  expressly  delegated  by  the  Confederation,  it  does 
not  then  follow  that  the  United  States  in  Congress  have  no  other 
powers,  jurisdiction,  or  rights,  than  those  delegated  by  the  par- 
ticular States.  The  United  States  have  general  rights,  general 
powers,  and  general  obligations,  not  derived  from  any  par- 
ticular States,  nor  from  all  the  particular  States  taken  separately ; 
but  resulting  from  the  union  of  the  whole.  ...  To  many 
purposes  the  United  States  are  to  be  considered  as  one  undivided, 
independent  nation;  and  as  possessed  of  all  the  rights,  powers 
and  properties  by  the  law  of  nations  incident  to  such.  "Whenever 
an  object  occurs,  to  the  direction  of  which  no  particular  State  is 
competent,  the  management  of  it  must,  of  necessity,  belong  to  the 
United  States  in  Congress  assembled.  There  are  many  objects 
of  this  extended  nature." 

President  Roosevelt  has  expressly  adopted  the  foregoing  doc- 
trine as  sound.  He  says :  "  I  cannot  do  better  than  base  my 
theory  of  governmental  action  upon  the  words  and  deeds  of  one 
of  Pennsylvania's  greatest  sons,  Justice  James  Wilson."  Inter- 
preting this  theory,  Roosevelt  says :  "  He  developed  even  before 
Alarshall  the  doctrine  (absolutely  essential  not  merely  to  the 
efficiency  but  to  the  existence  of  this  nation)  that  an  inherent 
power  rested  in  the  nation,  outside  of  the  enumerated  powers  con- 
ferred upon  it  by  the  Constitution,  in  all  cases  where  the  object 
involved  was  beyond  the  power  of  the  several  States  and  was  a 
power  ordinarily  exercised  by  sovereign  nations.  In  a  remark- 
able letter  in  which  he  advocated  setting  forth  in  early  and  clear 
fashion  the  powers  of  the  National  Government,  he  laid  down  the 
proposition  that  it  should  be  made  clear  that  there  were  neither 
vacancies  nor  interferences  between  the  limits  of  state  and 
national  jurisdictions,  and  that  both  jurisdictions  together  com- 
posed only  one  uniform  and  comprehensive  system  of  government 
and  laws;  that  is,  whenever  the  States  cannot  act,  because  fche 
need  to  be  met  is  not  one  merely  of  a  single  locality,  then  the 
National  Government,  representing  all  the  people,  should  have 
complete  power  to  act.  .  .  .  Certain  judicial  decisions  have 
done  just  what  Wilson  feared;  they  have,  as  a  matter  of  fact,  left 


PlJIXCIPLKS    OF    CoXSTITUTIOXAL    CONSTRUCTION.  49 

vacancies,  left  blanks  between  the  limits  of  actual  National  juris- 
diction over  the  control  of  the  great  business  corporations.  .  .  . 
The  legislative  or  judicial  actions  and  decisions  of  which  I  com- 
plain, be  it  remembered,  do  not  really  leave  to  the  States  power 
to  deal  with  corporate  wealth  in  business.  Actual  experience  has 
shown  that  the  States  are  wholly  powerless  to  deal  with  this  sub- 
ject; and  any  action  or  decision  that  deprives  the  nation  of  the 
power  to  deal  with  it,  simply  results  in  leaving  the  corporations 
absolutely  free  to  work  without  any  effective  supervision  what- 
ever; and  such  a  course  is  fraught  with  untold  danger  to  the 
future  of  our  whole  system  of  government,  and,  indeed,  to  our 
whole  civilization."  51 

The  foregoing  doctrine  is  one  quite  different  from  the  estab- 
lished doctrine  of  implied  powers  as  developed  by  ^Marshall,  a 
doctrine  which  will  be  discussed  in  the  next  chapter.  That  doc- 
trine, as  it  will  be  seen,  holds  that  from  an  expressly  given  fed- 
eral power  there  may  be  implied  those  powers  which  are  necessary 
and  proper  for  effectively  exercising  it.  The  doctrine  thus  does 
not  justify,  under  any  circumstances,  the  assumption  of  a  new 
power  by  the  Federal  Government.  The  Wilson-Roosevelt  doc- 
trine on  the  other  hand  asserts  that  a  given  subject  not  originally 
within  the  sphere  of  federal  control,  may,  by  mere  change  of 
circumstances,  be  brought  within  the  federal  field.  Thus,  to 
illustrate  concretely,  it  might  be  argued  according  to  the  doctrine 
of  implied  powers  that  as  implied  in  authority  expressly  granted 
to  Congress  to  regulate  foreign  and  interstate  commerce,  Congress 
might  compel  all  corporations  or  individuals  manufacturing  com- 
modities f«T  foreign  or  interstate  commerce  to  obtain  a  federal 
license,  such  a  license  to  be  granted  upon  such  terms  as  Congress 
might  see  fit  to  dictate.  According  to  the  Wilson-Roosevelt  doc- 
trine, however,  it  could  be  argued  that  the  control  of  manufactur- 
ing is  not  expressly  denied  the  Federal  Government  nor  expressly 
placed  within  the  exclusive  control  of  the  States,  and  that,  under 
existing  industrial  conditions  it  being  of  federal  importance  that 
n  manufacturing  concerns,  or  certain  of  them,  should  be  regu- 

:"Cch  at  the  dedication  of  the  Pennsylvania  capitol  at  Harrisburg. 

4 


50  United  States  Constitutional  Law. 

lated,  and  the  States  being  incompetent  to  furnish  the  necessary 
regulation,  therefore,  the  Federal  Government  has  the  power. 

Here,  it  will  be  seen,  there  is  no  resort  whatever  to  the  com- 
merce clause,  or  to  any  other  express  grant  of  power.  The  doc- 
trine is  thus  one  which  in  the  absence  of  express  prohibition  in 
the  Constitution  will  support  the  assumption  by  the  Federal 
Government  of  any  power  whatsoever  if  there  be  fair  ground  for 
holding  that  regulation  is  needed  and  that  the  States  are  not  able 
to  furnish  it. 

In  the  very  recent  case  of  Kansas  v.  Colorado,52  decided  May  13, 
1907,  substantially  this  Wilson  doctrine  was  urged  upon  the  court, 
the  argument  being,  as  summarized  by  Justice  Brewer  that :  "All 
legislative  power  must  be  vested  in  either  the  State  or  the 
National  Government,  no  legislative  powers  belong  to  a  state 
government  other  than  those  which  affect  solely  the  internal  affairs 
of  that  State;  consequently  all  powers  which  are  national  in  their 
scope  must  be  found  vested  in  the  Congress  of  the  United  States." 

In  refutation  of  this  argument  Justice  Brewer  says :  "  But  the 
proposition  that  there  are  legislative  powers  affecting  the  nation 
as  a  whole  which  belong  to,  although  not  expressed  in,  the  grant 
of  powers,  is  in  direct  conflict  with  the  doctrine  that  this  is  a 
government  of  enumerated  powers.  That  this  is  such  a  govern- 
ment clearly  appears  from  the  Constitution,  independently  of  the 
Amendments,  for  otherwise  there  would  be  an  instrument  grant- 
ing certain  specified  things  made  operative  to  grant  other  and 
distinct  things.  This  natural  construction  of  the  original  body 
of  the  Constitution  is  made  absolutely  certain  by  the  Tenth 
Amendment.  This  Amendment,  which  was  seemingly  adopted 
with  prescience  of  just  such  contention  as  the  present,  disclosed 
the  widespread  fear  that  the  National  Government  might,  under 
the  pressure  of  a  supposed  general  welfare,  attempt  to  exercise 
powers  which  had  not  been  granted.  With  equal  determination 
the  framers  intended  that  no  such  assumption  should  ever  find 
justification  in  the  organic  act,  and  that  if,  in  the  future,  further 

52  206  U.  S.  46;  27  Sup.  Ct.  Rep.  655;  51  L.  ed.  956. 


Principles  of  Constitutional  Construction.  51 

powers  seemed  necessary,  they  should  be  granted  by  the  people 
in  the  manner  they  had  provided  for  amending  that  act  It  reads : 
'  The  powers  not  delegated  to  the  United  States  by  the  Constitu- 
tion, nor  prohibited  by  it  to  the  States,  are  reserved  to  the  States 
respectively,  or  to  the  people.'  The  argument  of  counsel  ignores 
the  principal  factor  in  this  article,  to  wit,  '  the  people.'  Its  prin- 
cipal purpose  was  not  the  distribution  of  power  between  the 
United  States  and  the  States,  but  a  reservation  to  the  people  of 
all  powers  not  granted.  %  The  Preamble  of  the  Constitution  de- 
clares who  framed  it, — '  We,  the  People  of  the  United  States,' 
not  the  people  of  one  State,  but  the  people  of  all  the  States;  and 
Article  X  reserves  to  the  people  of  all  the  States  the  powers  not 
delegated  to  the  United  States.  The  powers  affecting  the  internal 
affairs  of  the  States  not  granted  to  the  United  States  by  the  Con- 
stitution, nor  prohibited  to  it  by  the  States,  are  reserved  to  the 
States  respectively,  and  all  powers  of  a  national  character  which 
are  not  delegated  to  the  Xational  Government  by  the  Constitution 
are  reserved  to  the  people  of  the  United  States.  The  people  who 
adopted  the  Constitution  knew  that  in  the  nature  of  things  they 
could  not  foresee  all  the  questions  which  might  arise  in  the  future, 
all  the  circumstances  which  might  call  for  the  exercise  of  further 
national  powers  than  those  granted  to  the  United  States,  and 
after  making  provision  for  an  amendment  to  the  Constitution  by 
which  any  needed  additional  powers  would  be  granted,  they  re- 
served to  themselves  all  powers  not  so  delegated.  This  Article  X 
is  not  to  be  shorn  of  its  meaning  by  any  narrow  or  technical  con- 
struction, but  is  to  be  considered  fairly  and  liberally  so  as  to  give 
effect  to  its  scope  and  meaning." 

§  28.  Stare  Decisis. 

There  have  not  been  many  cases  in  which  the  Supreme  Court 
has  explicitly  and  avowedly  overruled  its  prior  decisions,  but 
there  have  been  frequent  instances  in  which  the  doctrines  declared 
in  prior  cases,  have  been  in  part  evaded  or  modified  without 
explicit  repudiation. 


52  United  States  Constitutional.  Law. 

Taney  in  the  Passenger  Cases53  says :  "  I  had  supposed  that 
question  to  be  settled,  so  far  as  auy  question  upon  the 
construction  of  the  Constitution  ought  to  he  regarded  as  closed 
by  the  decision  of  this  court.  I  do  not,  however,  object  to  the 
revision  of  it,  and  am  quite  willing  that  it  be  regarded  hereafter 
as  the  law  of  this  court  that  its  opinion  upon  the  construction  of 
the  Constitution  is  always  open  to  discussion  when  it  is  supposed 
to  be  founded  in  error,  and  that  its  judicial  authority  should 
hereafter  depend  altogether  on  the  force  of  the  reasoning  by 
which  it  is  supported." 

In  Washington  University  v.  Rouse54  Justice  Miller  said: 
"  With  as  full  respect  for  the  authority  of  former  decisions  as 
belongs,  from  teaching  and  habit,  to  judges  trained  in  the  com- 
mon law  system  of  jurisprudence,  we  think  there  may  be  ques- 
tions touching  the  powers  of  legislative  bodies  wThich  can  never 
be  closed  by  the  decisions  of  a  court." 

There  are  indeed  good  reasons  why  the  doctrine  of  stare  decisis 
should  not  be  so  rigidly  applied  to  the  constitutional  as  to  other 
laws. 

In  cases  of  purely  private  import,  the  chief  desideratum  is  that 
the  law  remain  certain,  and,  therefore,  where  a  rule  has  been 
judicially  declared  and  private  rights  created  thereunder,  the 
courts  will  not,  except  in  the  clearest  cases  of  error,  depart  from 
the  doctrine  of  stare  decisis.  When,  however,  public  interests  are 
involved,  and  especially  when  the  question  is  one  of  constitutional 
construction,  the  matter  is  otherwise.  An  error  in  the  construc- 
tion of  a  statute  may  easily  be  corrected  by  a  legislative  act,  but  a 
constitution  and  particularly  the  federal  Constitution,  may  be 
changed  only  with  great  difficulty.  Hence  an  error  in  its  inter- 
pretation may  for  all  practical  purposes  be  corrected  only  by  the 
court's  repudiating  or  modifying  its  former  decision.55 

53  7  How.  283 ;  12  L.  ed.  702. 
"8  Wall.  439:  10  L.  ed.  498. 
55  Cf.  Baldwin,  American  Judiciary,  pp.  56-57. 


CHAPTER  III. 

THE    DIVISION   OF   POWERS   BETWEEN   THE   UNITED   STATES   AND 
ITS  MEMBER  STATES. 

§  29.  Federal  Powers. 

The  United  States  Constitution  serves  a  double  purpose.  It 
operates  as  an  instrument  to  delimit  the  several  spheres  of  federal 
and  state  authority,  and  to  provide  for  the  organization  of  the 
federal  Government.  In  this  chapter  we  shall  be  concerned  with 
only  the  first  of  these  two  subjects.  That  quaestio  vexata  of  the 
original  purpose  of  the  Constitution,  whether  intended  to  serve 
as  an  agreement  between  sovereign  compacting  States,  or  as  the 
fundamental  instrument  of  government  of  a  single  sovereign  peo- 
ple, it  is  fortunately  no  longer  necessary  to  discuss.  For  the  pur- 
pose of  a  treatise  on  the  constitutional  law  of  the  United  States 
as  it  exists  to-day  it  is  sufficient  to  describe  the  Constitution  as  a 
legal  instrument  distributing  the  totality  of  governmental  powers 
between  the  federal  and  state  governments,  according  to  the  gen- 
eral principle  that  the  powers  granted  the  Federal  Government 
are  specified,  expressly  <t  by  implication,  and  that  the  remainder 
of  the  possible  governmental  power?  "  not  delegated  to  the  United 
States  by  the  Constitution,  nor  prohibited  by  it  to  the  States,  are 
reserved  to  the  States  respectively,  or  to  the  people."1 

It  will  have  been  noticed  that  in  spealung  of  the  powers 
possessed  by  the  General  Government,  the  term  "  delegated  "  is 
used,  whereas,  in  speaking  of  the  powers  possessed  by  the  States, 
the  word  "  reserved  "  is  employed.  This  exhibits  the  fundamental 
principle  governing  the  division  of  powers  between  the  General 
Government  and  the  States  according  to  which  the  former  pos- 
»  iset  only  these  powers  that  are  by  the  Constitution  granted  to 
it,  whereas  the  States  are  entitled  to  all  powers  except  those  ex- 

i  Tenth  Amendment.  As  to  certain  of  the  powers  printed  to  the  Federal 
Government,  as  will  presently  appear,  tlie  fact  that  they  may  he  exercised 
by  that  government  doe«  not,  until  they  are  so  exercised,  deprive  the  States 
of  the  authority  to  exercise  them. 

[53] 


54  United  States  Constitutional.  Law. 

pressly  or  by  implication  denied  to  them  by  the  Constitution. 
Thus  the  General  Government  is  commonly  spoken  of  as  one  of 
enumerated  and  the  State  governments  as  governments  of  un- 
enumerated  powers. 

This  distinction  would  in  all  probability  have  been  recognized 
and  adopted  by  the  Supreme  Court  as  a  logical  corollary  from  the 
general  character  of  the  Constitution,  had  there  been  no  express 
direction  in  that  instrument  itself  to  such  effect.  Out  of  super- 
abundant caution,  however,  the  Tenth  Amendment  was  adopted. 

The  phrase  "  or  to  the  people  "  covers  these  powers  which, 
though  constitutionally  exercisable  by  the  States,  for  aught  the 
federal  Constitution  has  to  say,  are  by  their  own  state  constitu- 
tions denied  to  their  respective  governments.  Thus  the  federal 
and  the  state  constitutions  differ  in  this  important  respect  that 
the  grants  of  the  former  operate  to  endow  the  General  Govern- 
ment with  powers  that  it  would  not  otherwise  possess,  whereas 
the  provisions  of  the  latter  in  the  main  operate  to  deprive  the 
governments  which  they  create  of  powers  they  otherwise  would 
possess. 

Except  when  expressly  limited, —  as,  for  instance,  where  the 
power  which  is  given  to  levy  taxes  is  restricted  by  the  provisions 
that  "  all  duties,  imposts,  and  excises  shall  be  uniform  throughout 
the  United  States,"  that  "  no  tax  or  duty  shall  be  laid  on  articles 
exported  from  any  State,"  and  that  "  no  capitation  or  other  direct 
tax  shall  be  laid,  unless  in  proportion  to  the  census  or  enumera- 
tion hereinbefore  directed  to  be  taken,"  a  power  granted  to  Fed 
eral  Government  is  construed  to  be  absolute  in  character. 

§  30.  Express  and  Implied  Powers. 

Though  the  Federal  Government  is  one  of  enumerated  powers, 
its  powers  are  not  described  in  detail,  and  from  the  very  begin- 
ning it  has  been  construed  to  possess  not  simply  those  powers 
that  are  specifically  or  expressly  given  it,  but  also  those  necessary 
and  proper  for  the  effective  exercise  of  such  express  powers. 
After  enumerating  the  various  powers  that  Congress  is  to  pos- 
sess,   the    Constitution    declares2    "  [The    Congress    shall    have 

»Art.  I,  Sec.  8. 


Division  of  Powers  between  U.  S.  and  Member  States.     55 

power]  to  make  all  laws  which  shall  be  necessary  and  proper 
for  carrying  into  execution  the  foregoing  powers,  and  all  other 
powers  vested  by  this  Constitution  in  the  Government  of  the 
United  States  or  in  any  department  or  officer  thereof."  Further- 
more it  will  be  noticed  that  in  the  Tenth  Amendment,  above 
quoted,  the  powers  reserved  to  the  States  or  to  the  people  are  not 
those  expressly  delegated  to  the  United  States,  but  simply  those 
not  delegated.  This  is  significant  in  view  of  the  fact  that  in  the 
corresponding  section  in  the  Articles  of  Confederation  the  word 
"  expressly  "  is  carefully  inserted.3 

§  31.  Federal  Powers  to  be  Liberally  Construed. 

The  Constitution  is  in  terms  and  general  character  a  grant  of 
powers  —  a  grant  from  the  people  of  the  several  States  to  the 
Xational  Government,  and,  strictly  speaking,  as  in  all  grants  of 
power,  the  authority  that  may  be  exercised  thereunder  is  to  be 
limited  to  that  specifically  granted  or  impliedly  given.  But 
whereas,  in  general,  grants  of  authority  are  strictly  construed  as 
against  the  grantee  and  in  favor  of  the  reserved  rights  of  the 
grantor,  in  the  case  of  the  federal  Constitution  this  principle  has, 
it  is  seen,  not  been  applied.  The  justification  for  this  has  been 
deduced  from  the  general  nature  of  the  Constitution  as  an  instru- 
ment of  government,  and  from  the  character  of  the  end  which  was 
sought  to  be  obtained  by  its  establishment.  The  Federal  Govern- 
ments exists  not  for  the  benefit  of  those  who  exercise  its  powers, 
but  to  subserve  the  national  interests, —  political,  industrial,  and 
social, —  of  the  people  who  framed  and  adopted  it.  "While,  there- 
fore, it  is,  in  essential  character,  a  grant  of  powers,  and  is  to  be 
construed  as  such,  its  terms  are  to  be  interpreted  in  the  light  of 
the  fact  that  the  people  in  adopting  it  desired  the  establishment 
and  maintenance  of  an  effective  National  Government,  and  there- 
fore one  endowed  with  powers  commensurate  with  that  end.4 

3  Article  II.  "  Each  State  retains  its  sovereignty,  freedom  and  independence, 
and  every  power,  jurisdiction  and  right,  which  is  not  by  this  confederation 
expressly  delegated  to  the  United  States  in  Congress  assembled." 

*  "  In  construing  a  grant  or  surrender  of  powers  by  the  people  to  a  monarch, 
for  his  own  benefit  or  use,  it  is  not  only  natural,  but  just,  to  presume,  as  in 


5G  United  States  Constitutional  Law. 

In  the  case  of  Gibbons  v.  Ogden5  Marshall  took  pains  to 
assert  that  there  is  no  good  reason  for  holding  that  either 
the  express  or  the  implied  powers  of  the  Xational  Govern- 
ment are  to  be  strictly  construed.  His  language  is  as  fel- 
lows: "  This  instrument  contains  an  enumeration  of  powers 
expressly  granted  by  the  people  to  their  government.  It  has  been 
said  that  these  powers  ought  to  be  construed  strictly.  But  why 
ought  they  to  be  so  construed  ?  Is  there  one  sentence  in  the  Con- 
stitution which  gives  countenance  to  this  rule  I  In  the  last  of  the 
enumerated  powers,  that  which  grants,  expressly,  the  means  of 
carrying  all  others  into  execution,  Congress  is  authorized  '  to  make 
all  laws  which  shall  be  necessary  and  proper '  for  the  purpose. 
But  this  limitation  on  the  means  which  may  be  used,  is  not  ex- 
tended to  the  powers  which  are  conferred;  nor  is  there  one  sen- 
tence in  the  Constitution  which  has  been  pointed  out  by  the 
gentlemen  of  the  bar,  or  which  we  have  been  able  to  discern,  that 
prescribes  this  rule.  We  do  not  therefore  think  ourselves  justi- 
fied in  adopting  it.  What  do  gentlemen  mean  by  a  strict  con- 
struction?    If  they  contend  only  against  that  enlarged  construc- 

all  other  cases  of  grants,  that  the  parties  had  not  in  view  any  large  sense  of 
the  terms,  because  the  objects  were  a  derogation  presumably  from  their  rights 
and  interests.  But  in  construing  a  constitution  of  government,  framed  by  the 
people  for  their  own  benefit  and  protection,  for  the  preservation  of  their  rights, 
and  property,  and  liberty ;  where  the  delegated  powers  are  not,  and  cannot  be 
used  for  the  benefit  of  their  rulers,  who  are  but  their  temporary  servants  and 
agents ;  but  are  intended  solely  for  the  benefit  of  the  people,  no  such  presump- 
tion of  an  intention  to  use  the  words  in  the  most  restricted  sense  necessarily 
arises.  The  powers  given  by  the  people  to  the  General  Government  are  not 
necessarily  carved  out  of  the  powers  already  confided  to  the  state  governments. 
They  may  be  such  as  they  originally  reserved  to  themselves.  And,  if  they  are 
not,  the  authority  of  the  people  in  their  sovereign  capacity,  to  withdraw  power 
from  their  state  functionaries,  and  to  confide  it  to  the  functionaries  of  the 
General  Government,  cannot  be  doubted  or  denied.  If  they  withdraw  the  power 
from  the  state  functionaries,  it  must  be  presumed  to  be,  because  they  deem  it 
more  useful  for  themselves,  more  for  the  common  benefit  and  common  protec- 
tion, than  to  leave  it  where  it  has  been  hitherto  deposited.  .  .  .  The  state 
governments  have  no  right  to  assume  that  the  power  is  more  safe  cr  more 
useful  with  them,  than  with  the  General  Government;  that  they  have  a  higher 
capacity  and  a  more  honest  desire  to  preserve  the  rights  and  liberties  of  the 
people  than  the  General  Government."  Story  Commentaries,  §§  413-416. 
6  9  Wh.  1 ;  G  L.  ed.  23. 


Division  of  Powers  between  F.  S.  and  Member  States.     57 

tiou  which  would  extend  words  beyond  their  natural  and  obvious 
import,  we  might  question  the  application  of  the  term,  but  should 
not  controvert  the  principle.  If  they  contend  for  that  narrow 
construction  which,  in  support  of  some  theory  not  to  be  found  in 
the  Constitution,  would  deny  to  the  government  those  powers 
which  the  words  of  the  grant,  as  usually  understood,  impart,  and 
which  are  consistent  with  the  general  views  and  objects  o£  the 
instrument;  for  that  narrow  construction,  which  would  cripple 
the  government  and  render  it  unequal  to  the  objects  for  which 
it  was  declared  to  be  instituted,  and  to  which  the  powers  given, 
as  fairly  understood,  render  it  competent;  then  we  cannot  per- 
ceive the  propriety  of  this  strict  construction,  nor  adopt  it  as  the 
rule  by  which  the  Constitution  is  to  be  expounded.  As  men, 
whose  intentions  require  no  concealment,  generally  employ  the 
words  which  most  directly  and  aptly  express  the  ideas  they  in- 
tend to  convey,  the  enlightened  patriots  who  framed  our  Consti- 
tution, and  the  people  who  adopted  it,  must  be  understood  to  hai  e 
employed  words  in  their  natural  sense,  and  to  have  intended  what 
they  have  said.  If,  from  the  imperfection  of  human  language, 
there  should  be  serious  doubts  respecting  the  extent  of  any  given 
power,  it  is  a  well  settled  rule  that  the  objects  for  which  it  was 
given,  especially  when  those  objects  are  expressed  in  the  instru- 
ment itself,  should  have  great  influence  in  the  construction.  "We 
know  of  no  reason  for  excluding  this  rule  from  the  present  case. 
The  grant  does  not  convey  power  which  might  be  beneficial  to  the 
grantor,  if  retained  by  himself,  or  which  can  enure  solely  to  the 
benefit  of  the  grantee,  but  is  an  investment  of  power  for  the  gen- 
oral  advantage,  in  the  hands  of  agents  selected  for  that  purpose, 
which  power  can  never  be  exercised  by  the  people  themselves,  but 
must  be  placed  in  the  hands  of  agents,  or  lie  dormant  We  know 
of  no  rule  for  construing  the  extent  of  such  powers,  other  than 
is  given  by  the  language  of  the  instrument  which  confers  thern, 
j  taken  in  connection  with  the  purposes  for  which  they  were  con- 
ferred." 


58  United  States  Constitutional  '  Law. 

§  32.  Strict  Construction  a  Corollary  of  the  States'  Rights  Doc- 
trine. 

"Without  in  any  way  questioning  the  validity  of  the  rule  of 
construction  stated  in  the  preceding  paragraphs,  it  is  to  be  ob- 
served that  its  propriety  is  absolutely  dependent  upon  the  prior 
assumption  that  the  Federal  Government  exists  as  the  agent  of 
the  people,  and  not,  according  to  the  States'  Eights  theory,  as  the 
agent  of  the  States.  Had  the  theory  which  conceives  the  United 
States  to  be  a  confederacy  of  sovereign  States,  and  its  govern- 
ment as  the  agent  of  these  creating  component  units,  been  ac- 
cepted, it  would  have  logically  followed  that  a  doctrine  of  strict 
construction  of  federal  powers  would  have  been  appropriate,  for 
then  these  powers  would  have  been  in  direct  derogation  of  the 
rights  reserved  by  the  States  that  granted  them.  Strict  construc- 
tion thus  is  a  logical  corollary  of  the  States'  Rights  theory. 

§  33.  "  Necessary  and  Proper." 

In  pursuance  of  the  foregoing  principles  the  Supreme  Court 
of  the  United  States  has,  from  the  very  beginning,  declared  that 
the  powers  thus  impliedly  granted  the  General  Government  as 
necessary  and  proper  for  the  exercise  of  the  powers  expressly 
given,  are  to  be  liberally  construed.  The  words  "  necessary  and 
proper,"  it  was  early  held,  were  not  to  be  interpreted  as  endowing 
the  General  Government  simply  with  those  powers  indispensably 
necessary  for  the  exercise  of  its  express  powers,  but  as  equipping 
it  with  any  and  every  authority  the  exercise  of  which  may  in  any 
way  assist  the  Federal  Government  in  effecting  any  of  the  pur- 
poses the  attainment  of  which  is  within  its  constitutional  sphere. 
Thus  in  the  case  of  the  United  States  v.  Fisher,6  decided  in  1804, 
Marshall  declared :  "  It  would  be  incorrect  and  would  produce 
endless  difficulties  if  the  opinion  should  be  maintained  that  no 
law  was  authorized  which  was  not  indispensably  necessary  to  give 
effect  to  a  specified  power.  Where  various  systems  might  be 
adopted  for  that  purpose,  it  might  be  said  with  respect  to  each 
that  it  was  not  necessary  because  the  end  might  be  obtained  by 

«2  Cr.  358;  2  L.  ed.  304. 


Division  of  Powebs  between  U.  S.  and  Member  States.     59 

other  means.  Congress  might  possess  the  choice  of  means  which 
are  in  fact  conducive  to  the  exercise  of  a  power  granted  by  the 
Constitution." 

§  34.  McCulloch  v.  Maryland. 

The  classic  statement,  however,  of  the  scope  of  the  "  implied  " 
powers  of  Congress  is  of  course  that  made  by  Marshall  in  the 
opinion  which  he  rendered  in  McCulloch  v.  Maryland.7  In  that 
great  case,  the  Chief  Justice  says :  u  It  may  with  great  reason 
be  contended,  that  a  government,  entrusted  with  such  ample 
powers  [as  is  the  United  States]  on  the  due  execution  of  which 
the  happiness  and  prosperity  of  the  Xation  so  vitally  depends, 
must  be  entrusted  with  ample  means  for  their  execution.  The 
power  being  given,  it  is  the  interest  of  the  Nation  to  facilitate 
its  execution.  It  can  never  be  their  interest,  and  cannot  be  pre- 
sumed to  have  been  their  intention,  to  stay  and  embarrass  its 
execution  by  withholding  the  most  appropriate  means." 

The  determination  of  what  are  appropriate  means  must,  Mar- 
shall goes  on  to  declare,  belong  to  the  government  which  is  to 
employ  them.  "  The  government  which  has  a  right  to  do  an  act, 
and  has  imposed  on  it  the  duty  of  performing  that  act,"  he  says, 
44  must,  according  to  the  dictates  of  reason,  be  allowed  to  select 
the  means."  # 

To  the  argument  that  a  selected  means  must  be  an  indispens- 
able as  well  as  a  proper  one,  Marshall  replies:  "  Is  it  true  that 
this  is  the  sense  in  which  the  word  *  necessary'  is  always  used? 
Does  it  always  import  an  absolute  physical  necessity,  so  strong 
that  one  thing,  to  which  another  may  be  termed  necessary,  can- 
not exist  without  that  other  ?  We  think  it  does  not.  If  reference 
be  had  to  its  use,  in  the  common  affairs  of  the  world,  or  in  ap- 
proved authors,  we  find  that  it  frequently  imports  no  more  than 
that  one  thing  is  convenient  or  useful,  or  essential  to  another." 

Applying  this  interpretation  of  the  word  to  its  use  in  the  Con- 
stitution the  opinion  declares : 

7  4  Wh.  316;  4  L.  ed.  579. 


60  United  States  Constitutional  Lav,-. 

"  The  subject  is  the  execution  of  those  great  powers  on  which 
the  welfare  of  a  nation  essentially  depends.  It  must  have  been 
the  intention  of  those  who  gave  these  powers,  to  insure,  as  far  as 
human  prudence  could  insure,  their  beneficial  execution.  This 
could  not  be  done  by  confiding  the  choice  of  means  to  such  narrow 
limits  as  not  to  leave  it  in  the  power  of  Congress  to  adopt  any  which 
might  be  appropriate,  and  which  were  conducive  to  the  end.  This 
provision  is  made  in  a  constitution  intended  to  endure  for  ages 
to  come,  and,  consequently,  to  be  adapted  to  the  various  crises  of 
human  affairs.  To  have  prescribed  the  means  by  which  govern- 
ment should,  in  all  future  time,  execute  its  powers,  would  have 
been  to  change,  entirely,  the  character  of  the  instrument,  and 
give  it  the  properties  of  a  legal  code.  It  would  have  been  an 
unwise  attempt  to  provide,  by  immutable  rules,  for  exigencies 
which,  if  foreseen  at  all,  must  have  been  seen  dimly,  and  which 
can  be  best  provided  for  as  they  occur.  To  have  declared  that 
the  best  means  shall  not  be  used,  but  those  alone  without  which 
the  power  given  would  be  nugatory,  would  have  been  to  deprive 
the  legislature  of  the  capacity  to  avail  itself  of  experience,  to  ex- 
ercise its  reason,  and  to  accommodate  its  legislation  to  circum- 
stances. If  we  apply  this  principle  of  construction  to  any  of  the 
powers  of  the  government,  we  shall  find  it  so  pernicious  in  its  , 
operation  that  we  shall  be  compelled  to  discard  it." 

-  In  conclusion  of  this  point,  the  Chief  Jifstice  says :  "  The  re- 
sult of  the  most  careful  and  attentive  consideration  bestowed  upon 
this  clause  is,  that  if  it  does  not  enlarge,  it  cannot  be  construed 
to  restrain  the  powers  of  Congress,  or  to  impair  the  right  of  the 
legislature  to  exercise  its  best  judgment  in  the  selection  of 
measures  to  carry  into  execution  the  constitutional  powers  of  the 
government.  If  no  other  motive  for  its  insertion  can  be  suggested, 
a  sufficient  one  is  found  in  the  desire  to  remove  all  doubts  respect- 
ing the  right  to  legislate  on  that  vast  mass  of  incidental  powers 
which  must  be  involved  in  the  Constitution,  if  that  instrument  be 
not  a  splendid  bauble.  "We  admit,  as  all  must  admit,  that  the 
powers  of  the  government  are  limited,  and  that  its  limits  are  not 
to  be  transcended.     But  we  think  the  sound  construction  of  the 


DlVIslOX    OF   PoWKK.S   1UXWEMB   U.   S.  ABB  MEilBEB   STATES.       61 

Constitution  must  allow  to  the  national  legislature  that  discre- 
tion, with  respect  to  the  means  by  which  the  powers  it  confers 
are  to  be  carried  into  execution,  which  will  enable  that  body  to 
perform  the  high  duties  assigned  to  it,  in  the  manner  most  bene- 
ficial to  the  people.  Let  the  end  be  legitimate,  let  it  be  within 
the  scope  of  the  Constitution,  and  all  means  which  aje  appro- 
priate, which  are  plainly  adapted  to  that  end,  which  are  not 
prohibited,  but  consistent  with  the  letter  and  spirit  of  the  Con- 
stitution, are  constitutional." 

Reviewing  the  effect  of  this  decision,  it  is  seen  that  the 
words  "  and  proper "  as  used  in  the  phrase  u  necessary  and 
proper  "  are  construed  not  as  declaring  that  a  means  selected  by 
Congress  shall  be  proper  as  well  as  necessary  —  that  is,  indis- 
pensable —  for  carrying  into  effect  a  specified  power,  but  as  quali- 
fying and  extending  the  force  of  "  necessary "  so  as  to  render 
constitutional  the  selection  of  any  means  that  may  be  appropriate, 
that  is,  may  in  any  way  assist  the  General  Government  in  the 
exercise  of  its  constitutional  functions.  It  need  not  be  said,  of 
course,  that  the  question  as  to  whether  or  not  the  particular 
means  selected  is  the  best  possible  means  that  might  have  been 
adopted,  is  one  for  Congress  to  answer.  All  that  the  courts  have 
to  consider  in  passing  upon  its  constitutionality  is  as  to  whether 
it  is  calculated  in  any  appreciable  degree  to  advance  the  consti- 
tutional end  involved. 

One  further  fact  regarding  the  implied  powers  of  Congress  is 
to  be  noticed.  This  is  that  a  power  employed  as  incidental  to  the 
exercise  of  an  express  power  may  be  used  free  from  the  limitation 
under  which  it  would  rest  if  exercised  as  an  express  power.  Thus, 
in  Veazie  Bank  v.  Fennos  and  Head  Money  Cases0  the  Supreme 
Court  decided  that  the  power  of  taxation  when  used  simply  as  a 
means  for  regulating  commerce  and  currency,  is  not  subject  to 
the  constitutional  limitations  under  which  it  would  rest  if  exer- 
cised for  the  purpose  of  raising  a  revenue.  In  the  Head  Money 
Cases  the  court  declared,  relative  to  a  per  capita  tax  levied  by 

8S  Wall.  533:   19  L.  e<l.  482. 

9  112  U.  S.  580:  5  Sup.  Ct.  Rep.  247;  28  L.  ed.  798. 


62  United  States  Constitutional  Law. 

Congress  upon  persons,  not  citizens  of  the  United  States,  coming- 
to  this  country:  "If  this  is  an  expedient  regulation  of  com- 
merce by  Congress,  and  the  end  to  be  .obtained  is  one  falling 
within  the  power,  the  act  is  not  void,  because,  within  a  loose 
and  more  extended  sense  than  was  used  in  the  Constitution,. 
it  is  called  a  tax.  In  the  case  of  Veazie  Bank  v.  Fenno,  the  enor- 
mous tax  of  ten  per  cent,  per  annum  on  the  circulation  of  state 
banks,  which  was  designed,  and  did  have  the  effect,  to  drive  all 
such  circulation  out  of  existence,  was  upheld  because  it  was  a 
means  properly  adopted  by  Congress  to  protect  the  currency  which 
it  had  created.  ...  It  was  not  subject,  therefore,  to  the  rules 
which  would  invalidate  an  ordinary  tax  pure  and  simple." 

•  - 

§  35.  Administrative  Necessity  as  a  Source  of  Federal  Power. 

Since  the  close  of  the  Civil  War  the  sovereignty  of  the  National 
Government  has  been  undisputed.  Starting  with  this  as  a  funda- 
mental premise,  constitutional  development  of  the  last  forty  years 
has  been  in  the  direction  of  endowing  the  Federal  Government 
with  administrative  powers  adequate  for  the  accomplishment  of 
the  purposes  for  which  it  is  acknowledged  to  exist.  Just  as  the 
doctrine  of  implied  powers  has  been  used  to  broaden  the  scope  of 
federal  authority  at  the  expense  of  the  reserved  rights  of  the 
States,  so  the  principle  of  administrative  efficiency  has  been 
employed  to  permit  the  field  of  individual  rights  to  be  entered. 
Thus  in  a  remarkable  series  of  cases  the  courts  have  permitted 
the  exercise  by  federal  executive  officials  of  degrees  of  ad- 
ministrative discretion  that  would  have  startled  constitutional 
jurists  of  but  a  generation  ago. 

In  these  cases  the  Supreme  Court  has  frankly  argued  that 
where,  for  the  efficient  performance  of  the  administrative  duties 
laid  upon  the  General  Government,  it  is  necessary  that  an  admin- 
istrative order  should  take  the  place  of  a  judicial  process,  the 
private  rights  of  person  and  property  are  not  to  be  allowed  to 
stand  in  the  way.  In  Murray's  Lessee  v.  Hoboken10  it  was  held 
that  an  administrative  officer  could  fix  finally,  without  judicial 

10  18  How.  272;  15  L.  ed.  372. 


Division  of  Powers  between  U.  S.  and  Member  States.     63 

review,  the  amount  due  the  Government  from  a  public  official, 
and  collect  it  by  a  distress  warrant. 

In  Springer  v.  United  States11  the  power  of  the  Government 
to  collect  a  tax  by  a  sale  of  land  under  a  warrant  issued  by  the 
collector  was  upheld.  In  Smelting  Co.  v.  Kemp12  the  adminis- 
trative decision  of  the  United  States  Land  Office  was  held  final 
as  to  the  facts  within  its  statutory  jurisdiction. 

The  power  of  the  Postmaster-General  to  exclude  from  the  postal 
service  the  mail  of  concerns  whose  business  he  deems  fraudulent 
has  been  sustained,  though,  by  the  statute  conferring  the  power, 
no  right  of  judicial  review  is  given.  The  Supreme  Court  say: 
"  If  the  ordinary  daily  transactions  of  the  Departments  which 
involve  an  interference  with  private  rights  were  required  to  be 
submitted  to  the  courts  before  action  was  finally  taken,  the  result 
would  entail  practically  a  suspension  of  some  of  the  most  im- 
portant functions  of  government."  13  In  Bartlett  v.  Kane14  the 
court  refused  to  examine  the  correctness  of  an  appraisement  by  an 
administrative  officer  of  property  for  taxation,  saying :  "  The 
interposition  of  the  courts  in  the  appraisement  of  importations 
would  involve  the  collection  of  the  revenues  in  inextricable  con- 
fusion and  embarrassment/'  Finally,  and  most  extreme  of  all, 
with  regard  to  the  exclusion  of  aliens,  it  has  been  held  that  an 
administrative  officer  may  decide  finally  whether  or  not  a  person 
claiming  to  be  a  citizen  of  the  United  States  is  in  fact  such,  and, 
therefore,  entitled  to  enter  this  country.15  This  decision  Justice 
Brewer,  in  his  dissenting  opinion,  characterized  as  "  appalling ;" 
but  there  is  little  chance  that  its  doctrine  will  be  disturbed  in 
subsequent  cases.16 

ni02  U.  S.  5S6;  26  L.  ed.  253. 

12  104  U.  S.  G3G;  26  L.  ed.  875. 

"Public  Clearing  HonM  v.  Coyne  (194  U.  S.  497;  24  Sup.  Ct.  Rep.  789; 
48  L.  ed.   1092). 

14  If,  How.  203;   14  L.  ed.  931. 

"United  States  v.  Ju  Toy  (198  U.  S.  253;  25  Sup.  Ct.  Rep.  644;  49 
L.  cl.   1040). 

is  This  subject  of  the  conclusiveness  of  administrative  determinations  will 
receive  more  particular  treatment  in  chapter  LX1V. 


64  United  States  Constitutional  Law. 

In  a  manner  similar  to  that  in  which  the  National  Government 
has  thus  by  Congress  and  the  Supreme  Court  been  equipped  with 
the  powers  necessary  for  the  efficient  performance  of  the  admin- 
istrative duties  which  modern  industrial  and  commercial  condi- 
tions have  thrown  upon  it,  the  Supreme  Court  has,  upon  simple 
ground  of  necessity,  sanctioned  the  exercise  by  the  Federal  Gov- 
ernment of  powers  requisite  to  meet  the  problems  assumed  by  it 
in  the  imperialistic  policy  upon  which  it  has  entered  since  the 
Spanish  war. 

In  De  Lima  v.  Bidwell 17  the  power  of  the  L  nited  States  over 
its  dependencies  was  declared  to  arise,  not  out  of  the  territorial 
clause,  but  from  the  necessities  of  the  case  and  from  the  inability 
of  the  States  to  act  on  the  subject.  In  Hawaii  v.  Mankichi18 
upon  similar  grounds  of  expediency  the  right  to  jury  trial  was 
asserted  not  to  have  been  extended  to  Hawaii,  although  by  joint 
resolution  Congress  had  declared  that  all  local  laws  inconsistent 
with  the  Constitution  of  the  United  States  should  have  no  force. 
In  Downes-  v.  Bidwell  the  majority  justices,  Brown  excepted, 
argue  at  length  the  practical  necessity  of  conceding  to  the  General 
Government  the  power  of  annexing  foreign  territory  without  in- 
corporating it  into  the  United  States. 

L'pon  the  same  grounds  of  expediency  and  practical  necessity 
the  Supreme  Court,  in  United  States  v.  Kagama,1Sa  has  sustained 
the  continued  exclusive  control  of  the  Federal  Government  over 
the  Indians,  even  though  their  tribal  autonomy  is  no  longer  re- 
spected by  Congress. 

§  36.  International  Sovereignty  and  Responsibility  as  a  Source 
of  Implied  Powers. 

Starting  from  the  premise  that  in  all  that  pertains  to  inter- 
national relations  the  United  States  appears  as  a  single  sovereign 
nation,  and  that  upon  it  rests  the  constitutional  duty  of  meeting 
all  international  responsibilities,  the  Supreme  Court  has  deduced 

"  182  U.  S.  1 ;  21  Sup.  Ct.  Rep.  743 ;  45  L.  ed.  1041. 
W190  U.  S.  197;  23  Sup.  Ct.  Rep.  787;  47  L.  ed.  1016. 
i8o  118  U.  S.  375;  6  Sup.  Ct.  Rep.  1109;  30  L.  ed.  228. 


Division  of  Powers  between  U.  S.  and  "Member  States.     65 

corresponding  federal  powers.  In  Fong  Yuo  Ting  v.  United 
States19  that  court  say:  "  The  United  States  are  a  sovereign  and 
independent  nation,  and  are  vested  by  the  Constitution  with  the 
entire  control  of  international  relations,  and  with  all  the  powers 
of  government  necessary  to  maintain  that  control  and  to  make  it 
effective." 

Thus,  from  this  general  source  has  been  deduced  the  implied 
power  of  the  United  States  to  punish  the  counterfeiting  in  this 
country  of  the  securities  of  foreign  countries,  the  authority  to 
ainu-x  by  statute  unoccupied  territory,  to  establish  in  foreign 
countries  judicial  tribunals,  to  lease  and  administer  foreign  terri- 
tory, to  include  or  to  expel  from  onr  shores  undesirable  aliens, 
and  in  general  to  exercise  by  treaty  or  statute  all  those  powers 
properly  to  be  embraced  under  the  term  "  foreign  relations n 
which  other  sovereign  States  possess.  The  extent  of  the  authority 
of  the  United  States  under  its  treaty-making  powers  will  re- 
ceive special  treatment  in  a  later  chapter.  It  is  sufficient  to 
point  out  in  this  place  that  decisions  of  the  Supreme  Court  have 
established  the  doctrine  that  in  the  exercise  of  its  treaty-making 
powers,  and  in  fulfilling  its  international  responsibilities,  the 
United  States  may  exercise  regulative  control  over  matters  which 
are  not  within  the  legislative  power  of  Congress  and  which  are  in 
general  reserved  to  the  States.  In  short,  it  may  be  stated  as  an 
established  principle  of  our  constitutional  law  that  the  supreme 
purpose  of  our  Constitution  is  the  establishment  and  maintenance 
of  a  State  which  shall  be  nationally  and  internationally  a  sover- 
eign body,  and,  therefore,  that  all  the  limitations  of  the  Con- 
stitution, express  and  implied,  whether  relating  to  the  reserved 
rights  of  the  States  or  to  the  liberties  of  the  individual,  are  to 
be  construed  as  subservient  to  this  one  great  fact. 

§  37.  Resulting  Powers. 

The  two  preceding  sections  have  shown  that  the  doctrine  of 
implied  powers  is  sufficiently  broad  t<>  justify  the  exercise  by  the 
Federal  Government  of  powers  not  deduced  from  specific  grants 

19  149  U.  S.  698;   13  Sup.  Ct.  Rep.  1016;  37  L.  ed.  905. 
5 


66  United  States  Constitutional  Law. 

of  authority,  but  from  the  general  fact  that  the  United  States  is, 
with  reference  to  its  own  citizens  and  its  constituent  Common- 
wealths, a  fully  sovereign  national  'State,  and,  with  reference  to 
other  States,  a  political  power  equipped  with  all  the  authority 
possessed  by  other  independent  States.  Story  in  his  Commen- 
taries describes  as  "  Resulting  Powers "  these  federal  powers 
which  result  from  the  aggregate  authority  of  the  General  Govern- 
ment. That  federal  authority  may  be  deduced  from  this  general 
source  and  that  it  is  not  necessary  for  the  Federal  Government 
to  trace  back  every  one  of  its  powers  to  some  single  grant  of 
authority,  was  early  stated  by  Marshall  in  Cohens  v.  Virginia.20 
In  that  case  he  said :  "  It  is  to  be  observed  that  it  is  not  indis- 
pensable to  the  existence  of  every  power  claimed  for  the  Federal 
Government  that  it  can  be  found  specified  in  the  words  of 
the  Constitution,  or  clearly  and  directly  traceable  to  some  one  of 
the  specified  powers.  Its  existence  may  be  deduced  fairly  from 
more  than  one  of  the  substantive  powers  expressly  defined,  or 
from  them  all  combined.  It  is  allowable  to  group  together  any 
number  of  them  and  to  infer  from  them  all  that  the  power  claimed 
has  been  conferred."  And  later  in  the  same  opinion  he  says: 
"And  it  is  of  importance  to  observe  that  Congress  has  often  exer- 
cised, without  question,  powers  that  are  not  expressly  given  nor 
ancillary  to  any  single  enumerated  power." 

§  38.  Inherent  Sovereign  Powers. 

Sometimes  confused  with,  but  quite  distinct  from  the  doctrine 
which  ascribes  to  the  Federal  Government  plenary  authority  in 
matters  international,  and  quite  different  also  from  the  doctrine 
of  resulting  powers  is  that  theory  which  argues  the  possession 
generally  by  the  United  States  of  "  inherent  "  sovereign  powers 
—  that  is,  powers  not  regarded  as  implied  in  express  grants  of 
authority  whether  singly  or  collectively  considered,  but  as  flowing 
directly  from  the  simple  fact  of  national  sovereignty.  The  two 
former  doctrines  are  fairly  deducible  from  the  doctrine  of  im- 
plied  powers.      The   latter   doctrine,   upon   the  contrary,   would 

20  6  Wh.  264;  5  L.  ed.  257. 


Division  of  Powers  between  U.  S.  and  Member  States.     67 

derive  federal  authority  not  from  powers  expressly  granted,  but 
from  an  abstraction,  and  would,  at  a  stroke,  equip  the  Federal 
Government  with  every  power  possessed  by  any  other  sovereign 
State.21 

There  can  be  no  question  as  to  the  constitutional  unsoundness, 
as  well  as  of  the  revolutionary  character,  of  the  theory  thus 
advanced.  To  accept  it  would  be  at  once  to  overturn  the  long 
line  of  decisions  that  have  held  the  United  States  Government 
to  be  one  of  limited,  enumerated  powers.  Taney  in  denying  the 
President  the  right  to  authorize  a  suspension  of  the  writ  of  habeas 
corpus  explicitly  repudiated  the  doctrine.  "  Nor  can  any  argu- 
ment be  drawn,"  he  said,  "  from  the  nature  of  sovereignty,  or  the 
necessities  of  government  for  self-defense  in  times  of  tumult  and 

2i  This  theory  has  played  a  certain  part  in  our  constitutional  history  for 
many  years,  and  was  especially  pressed  during  the  period  following  the 
Spanish-American  War  and  before  the  decision  of  the  recent  Insular  Cases. 
Thus,  Senator  Piatt  of  Connecticut  declared  in  the  Senate,  December  19,  1898, 
that  the  United  States  "  possesses  every  sovereign  power  not  reserved  in  its 
Constitution  to  the  States  or  to  the  people;  that  the  right,  to  acquire  territory 
was  not  reserved,  and  is,  therefore,  an  inherent  sovereign  right;  that  it  is  a 
right  upon  which  there  is  no  limitation  and  with  regard  to  which  there  is  no 
qualification,  that  in  certain  instances  the  right  may  be  inferred  from  specific 
clauses  in  the  Constitution  but  that  it  exists  independent  of  the  clauses;  that 
in  the  right  to  acquire  territory  is  found  the  right  to  govern  it;  that  as  the 
right  to  acquire  is  a  sovereign  and  inherent  right,  the  right  to  rule  is  a 
sovereign  right  not  limited  in  the  Constitution."  Congressional  Record, 
XXXII,  No.  II,  pp.  321-3. 

So  also,  Senator  Foraker  of  Ohio  declared  in  the  Senate,  July  1,  1898,  in 
response  to  a  question  as  to  the  constitutional  source  whence  he  derived  the 
power  of  the  United  States  to  annex  foreign  territory,  that  "  the  power  was 
to  be  found  inherent  in  our  sovereignty  —  attached  to  it  necessarily  as  a  part 
of  our  sovereignty  as  a  nation,"  and  "  was  also  to  be  found  in  the  Constitu- 
tion—  expressly  conferred  upon  Congress  by  that  provision  of  the  Constitution 
which  authorizes  Congress  to  provide  for  the  general  welfare."  When  asked 
if  he  called  this  doctrine  the  "higher  law,"  he  replied:  "The  proposition  is 
that  it  is  inherent  in  sovereignty  to  do  whatever  sovereignty  may  see  fit  to  do, 
and  among  other  things  to  acquire  territory." 

Of  substantially  the  same  character  are  the  arguments  of  Gardiner  (Our 
Right  to  Acquire  and  Hold  Foreign  Territory,  Putnams',  1899),  and  of 
Magoon,  Law  Officer,  War  Department  (Report  on  the  Legal  Status  of  the 
Territory  and  Inhabitants  of  the  Islands  Acquired  by  the  United  States  during 
the  W'ar  xcith  Spain.    Doc.  234,  56th  Cong.,  1st  Session). 


Qg  United  States  Constitutional  Law. 

danger.  The  Government  of  the  United  States  is  one  of  dele- 
gated and  limited  powers.  It  derives  its  existence  and  authority 
altogether  from  the  Constitution  and  neither  of  its  branches  can 
exercise  any  of  the  powers  of  government  beyond  those  specified 
and  granted."  — 

Unfortunately,  however,  the  Supreme  Court  has  not  always 
been  as  careful  as  it  might  have  been  in  repudiating  the  argu- 
ment based  upon  the  inherent  sovereign  rights  of  the  National 
Government.  Although  it  has  never  explicitly  justified  the  exer- 
cise of  a  power  by  the  Federal  Government  upon  this  ground,  it 
lias,  obiter,  several  times  used  language  suggesting  its  validity.23 

22 Ex  parte  Alerryman   (Campbell's  Reports,  246). 

23  In  the  Legal  Tender  Cases  (12  Wall.  457;  20  L.  ed.  287),  Justice  Bradley- 
says:  "The  United  States  is  not  only  a  Government  but  it  is  a  National 
Government,  and  the  only  government  in  this  country  that  has  the  character 
of  nationality.  It  is  invested  with  power  over  all  the  foreign  relations  of  the 
country,  war,  peace,  and  negotiations  and  intercourse  with  other  nations;  all 
of  which  are  forbidden  to  the  state  governments.  .  .  .  Such  being  the  char- 
acter of  the  General  Government  it  seems  to  be  a  self-evident  proposition  that 
it  is  invested  with  all  those  inherent  and  implied  powers  which,  at  the  time  of 
adopting  the  Constitution,  were  generally  considered  to  belong  to  every  govern- 
ment as  such,  and  as  being  essential  to  the  exercise  of  its  functions.  If  this 
proposition  be  not  true,  it  certainly  is  true  that  the  Government  of  the  United 
States  lias  express  authority  in  the  clause  last  quoted,  to  make  all  such  laws 
(usually  regarded  as  inherent  and  implied)  as  may  be  necessary  and  proper 
for  carrying  on  the  government  as  constituted  and  vindicating  its  authority 
and  existence." 

In  United  States  v.  Jones  (109  U.  S.  513;  3  Sup.  Ct.  Rep.  346;  27  L.  ed. 
1015)  the  power  of  eminent  domain  was  declared  to  be  possessed  by  the  United 
States  as  an  "  incident  of  sovereignty,"  and  because  it  "  belongs  to  every 
independent  government." 

In  Church  of  Jesus  Christ  v.  United  States  (136  U.  S.  1;  10  Sup.  Ct.  Rep. 
792;  34  L.  ed.  47S)  "  the  power  to  make  acquisitions  of  territory  by  conquest, 
by  treaty,  and  by  cession  "  was  declared  to  be  possessed  by  the  United  States, 
not  from  any  express  or  otherwise  implied  power,  but  because  these  are  "  an 
incident  of  national  sovereignty." 

In  Fong  Yue  Ting  v.  United  States  (149  U.  S.  698;  13  Sup.  Ct.  Rep.  1016; 
37  L.  ed.  905)  "  the  right  to  exclude  or  expel  all  aliens,  or  any  class  of  aliens, 
absolutely  or  upon  certain  conditions  in  war  or  in  peace,"  was  declared  to 
belong  to  the  United  States  as  "  an  inherent  and  inalienable  right  of  every 
sovereign  and  independent  nation,  essential  to  its  safety,  its  independence,  and 
its  welfare." 


Division  of  Pasrsxa  BBTWKBB  l\  S.  and  Member  States.     69 

These  dicta  which  are  cited  in  the  footnote,  if  taken  by  them- 
selves might  seem  to  indicate  the  acceptance  by  the  Supreme 
Court  of  the  doctrine  of  inherent  sovereign  powers  of  the  General 
Government.  An  examination  of  the  cases  in  which  they  were 
delivered  discloses,  however,  that  in  each  instance  they  were 
obiter,  the  power  that  was  sustained  being  actually  justified  as  a 
resulting  or  implied  power.  In  the  recent  Insular  Cases  the  doc- 
trine was  strongly  urged  upon  the  court  but  received  no  counte- 
nance; and  in  Kansas  v.  Colorado,24  a  case  decided  in  1907,  in 
which  the  doctrine  was  set  up  in  a  somewhat  disguised  form,  the 
court  was  emphatic  in  its  repudiation.-5 

2*206  U.  S.  46;   27  Sup.  Ct.  Eep.  655;  51  L.  ed.  956. 

25  After  referring  to  the  absence  of  power  in  the  Federal  Government  to  con- 
trol private  property  in  the  States,  Justice  Brewer,  who  rendered  the  opinion 
of  the  court,  said:  "  Appreciating  the  force  of  this,  counsel  for  the  govern- 
ment relics  upon  'the  doctrine  of  sovereign  and  inherent  power;'  adding,  'I 
am  aware  that  in  advancing  this  doctrine  I  seem  to  challenge  great  decisions 
of  the  court,  and  1  speak  with  deference.'  His  argument  runs  substantially 
along  this  line:  All  legislative  power  must  he  vested  in  either  the  state  or 
the  national  government;  no  legislative  powers  belong  to  a  state  government 
other  than  those  which  affect  solely  the  internal  affairs  of  that  State;  conse- 
quently all  powers  wMeh  are  national  in  their  scope  must  be  found  vested 
in  th§  Congress  of  the  United  States.  But  the  proposition  that  there  are 
legislative  powers  affecting  the  Nation  as  a  whole  which  belong  to,  although 
not  expressed  in  the  grant  of  powers,  is  in  direct  conllict  with  the  doctrine 
that  this  is  a  government  of  enumerated  powers.  That  this  is  such  a  govern- 
ment clearly  appears  from  the  Constitution,  independently  of  the  Amendments, 
for  otherwise  there  would  be  an  instrument  granting  certain  specified  things 
made  operative  to  grant  other  and  distinct  things.  This  natural  construction 
of  the  original  body  of  the  Constitution  is  made  absolutely  certain  by  the  Tenth 
Amendment.  This  Amendment,  which  was  seemingly  adopted  with  prescience 
of  just  such  contention  as  the  present,  disclosed  the  widespread  fear  that  the 
National  Government  might,  under  the  pressure  of  a  supposed  general  welfare, 
attempt  to  exercise  poweis  which  had  not  been  granted.  With  equal  deter- 
mination the  framcrs  intended  that  no  such  assumption  should  ever  find 
justification  in  the  organic  act.  and  that  if  in  the  ftiture,  further  powers 
rv,  they  should  be  granted  by  tiie  people  in  the  manner  they 
had  provided  for  amending  that  act.  It  reads:  'The  powers  not  delegated  to 
tfca  I'nited  States  by  the  Constitution,  nor  prohibited  by  it  to  the  States,  are 
reserved  to  the  States  respectively,  or  to  the  people.'  The  argument  of  counsel 
ignores  the  principal  factor  in  this  article,  to  wit.  'the  people.'  Its  principal 
purpose  was  not  the  distribution  of  power  between  the  United  States  and  the 
States,  but  a  reservation  to  the  people  of  all  powers  not  granted.     The  pre- 


70  United  States  Constitutional  Law. 

§  39.  Express  Limitations  Upon  the  Federal  Government. 

.  The  express  limitations  upon  the  powers  of  the  Federal  Gov- 
ernment are  in  part  limitations  upon  the  manner  of  exercise  of 
powers  expressly  given,  as,  for  example,  that  direct  taxes  shall  be 
apportioned  among  the  several  States  according  to  their  respective 
populations,  that  naturalization,  bankruptcy,  and  tariff  laws  shall 
be  uniform  throughout  the  United  States,  etc. ;  and  in  part  absolute 
prohibitions  upon  the  exercise,  in  any  manner,  of  the  .powers 
specified.  These  absolute  prohibitions  are  to  be  found,  in  the 
main,  in  Section  9  of  Article  I  and  in  the  first  eight  Amendments. 
From  the  very  first  it  has  been  construed  by  the  Supreme  Court 
that  the  prohibitions  contained  in  these  Amendments  apply  only 
to  the  United  States.  This  was  first  authoritatively  declared  by 
Marshall  in  the  case  of  Barron  v.  Baltimore26  decided  in  1833. 

amble  of  the  Constitution  declares  who  framed  it, —  *  we,  the  people  of  the 
United  States,'  not  the  people  of  one  State,  but  the  people  of  all  the  States; 
and  Article  10  reserves  to  the  people  of  all  the  States  the  powers  not  delegated 
to  the  United  States.  The  powers  affecting  the  internal  affairs  of  the  States 
not  granted  to  the  United  States  by  the  Constitution,  nor  prohibited  by  it  to 
the  States,  are  reserved  to  the  States  respectively,  and  all  the  powers  of  a 
national  character  which  are  not  delegated  to  the  National  Government  by  the 
Constitution  are  reserved  to  the  people  of  the  United  States.  The  people  who 
adopted  the  Constitution  knew  that  in  the  nature  of  the  things  the}'  could  not 
foresee  all  the  questions  which  might  arise  in  the  future,  all  the  circumstances 
which  might  call  for  the  exercise  of  further  national  powers  than  those 
granted  to  the  United  States,  and,  after  making  provision  for  an  amendment 
to  the  Constitution  by  which  any  needed  additional  power?  would  be  granted, 
they  reserved  to  themselves  all  powers  not  so  delegated.  This  Article  10  is  not 
to  be  shorn  of  its  meaning  by  any  narrow  or  technical  construction  but  is  to 
be  considered  fairly  and  liberally  so  as  to  give  effect  to  it3  scope  and  meaning." 
Mr.  C.  J.  Tiedeman  in  his  work  The  Unicritlcn  Constitution  of  the  United 
States  raises  the  point  whether  a  correct  interpretation  of  the  Tenth  Amend- 
ment would  not  give  to  the  National  Government  those  powers  the  exercise  of 
which  is  prohibited  to  the  States,  but  which  are  neither  prohibited  nor  dele- 
gated to  the  General  Government.  His  claim  is  that  the  General  Government 
should  be  construed  to  have  those  powers,  for,  he  argues,  the  powers  must  rest 
somewhere;  they  are  expressly  prohibited  to  the  States,  and,  therefore,  they 
must  be  possessed  by  the  Nation.  The  advantage  which  he  conceives  would 
follow  from  an  acceptance  of  this  principle  would  be  the  avoidance  in  mam- 
cases  of  resorting  to  an  undue  straining  of  the  doctrine  of  implied  powers  in 
order  to  enable  the  General  Government  to  exercise  an  authority  essential  to 
its  welfare  but  not  expressly  delegated  to  it. 
26  7  Pet.  243 ;  8  L.  ed.  672. 


Division  of  Powers  between  U.  S.  and  Member  States.     71 

In  his  opinion  rendered  in  that  case,  Marshall  said:  "The 
plaintiff  .  .  .  insists  that  the  [Fifth]  Amendment  being 
in  favor  of  the  liberty  of  the  citizen,  ought  to  be  so  construed 
as  to  restrain  the  legislative  power  of  a  State  as  well  as  that 
of  the  United  States.  The  question  thus  presented  is,  we  think, 
of  great  importance,  but  not  of  much  difficulty.  The  Consti- 
tution was  ordained  and  established  by  the  people  of  the  United 
States  for  themselves,  for  their  own  government,  and  not  for  the 
government  of  the  individual  States.  Each  State  established  a 
Constitution  for  itself,  and  in  that  Constitution,  provided  such 
limitations  and  restrictions  on  the  powers  of  its  particular  govern- 
ment as  its  judgment  dictated.  The  people  of  the  United  States 
framed  next  a  government  for  the  United  States  as  they  supposed 
best  adapted  to  their  situation,  and  best  calculated  to  promote 
their  interests.  The  powers  to  be  conferred  on  the  Government 
were  to  be  exercised  by  itself;  and  the  limitations  on  power,  if 
expressed  in  general  terms,  are  naturally,  and  we  think  neces- 
sarily, applicable  to  the  government  created  by  the  instrument 
They  are  limitations  of  power  granted  in  the  instrument  itself, 
and  not  of  distinct  governments  framed  by  different  persons  and 
for  different  purposes." 

The  correctness  of  this  decision  has  never  been  questioned 
either  by  the  federal  or  the  state  courts.  However,  as  we  shall 
notice  in  a  later  chapter,  the  argument  has  been  made,  but  not 
accepted  as  valid  by  the  Supreme  Court,  that  the  clause  of  the 
Fourteenth  Amendment  which  provides  that  "  Xo  State  shall 
make  or  enforce  any  law  which  shall  abridge  the  privileges  or 
immunities  of  citizens  of  the  United  States,"  should  be  so  con- 
strued as  to  render  the  provisions  of  the  first  eight  Amendments 
operative  upon  the  States. 

In  regard  to  these  first  eight  Amendments  it  has  sometimes  been 
said  that  it  was  only  an  excess  of  caution  that  required  their 
incorporation  in  the  federal  Constitution.  Inasmuch  as  the 
United  States  was  to  have  only  the  powers  expressly  or  impliedly 
given  it,  it  has  been  asserted  that  the  General  Government  would 
have  been,   in  the  absence  of  such  express  limitations,  without 


72  United  States  Coxstitttioxal  Law. 

the  authority  to  exercise  the  powers  that  these  Amendments 
enumerate."7  A  consideration,  however,  of  the  construction  which 
several  of  the  provisions  of  these  Amendments  have  received, 
especially  during  recent  years,  will,  it  is  believed,  make  it  evident 
that  these  express  limitations  upon  the  Federal  Government  have 
been  of  considerable  importance.28 

§  40.  Implied  Limitations  Upon  the  Federal  Government. 

The  implied  limitations  upon  the  Federal  Government  are: 
first,  those  implied  in  the  express  limitations;  and  second,  those 
which  arise  from  the  general  nature  of  the  American  federal 
State.  The  Constitution  looks  to  a  preservation  of  the  several 
States  in  the  administrative  autonomy  that  is  allotted  to  them, 
and  from  this  is  deduced  the  principle  that  the  Federal  Govern- 
ment may  not,  unless  it  be  absolutely  necessary  to  its  own  effi- 
ciency, interfere  with  the  free  operation  of  state  governments 
either  by  way  of  imposing  upon  them  the  performance  of  duties, 
or  of  unduly  restraining  their  freedom  of  action  by  way  of  taxa- 
tion or  otherwise. 

27  Indeed,  in  the  eyes  of  some,  of  Hamilton  at  least,  there  were  affirmative 
reasons  why  these  limitations  should  not  be  expressly  stated.  In  The  Federalist, 
No.  84,  after  showing  that  Bills  of  Rights  were  "  stipulations  between  King* 
and  their  subjects,  abridgements  of  prerogative  in  favor  of  privilege,  reserva- 
tions of  rights  not  surrendered  to  the  prince,"  whereas  in  constitutions  "  the 
people  in  reality  surrendered  nothing,"  Hamilton  proceeds:  "  I  go  further  and 
affirm  that  bills  of  rights,  in  the  sense  and  to  the  extent  they  are  contended. 
for,  are  not  only  unnecessary  in  the  proposed  Constitution,  but  would  even  be 
dangerous.  They  would  contain  various  exceptions  to  powers  not  granted; 
and  on  this  very  account,  would  afford  a  colorable  pretext  to  claim  more  than 
were  granted.  For  why  declare  that  things  shall  not  be  done  which  there  is 
no  power  to  do?  Why,  for  instance,  should  it  be  said,  that  the  liberty  of  the 
press  shall  not  be  restrained,  when  no  power  is  given  by  which  restrictions 
may  be  imposed?  .  .  .  Men  disposed  to  usurp  .  .  .  might  urge  witli  a 
semblance  of  reason,  that  the  Constitution  ought  not  to  be  charged  with  the 
absurdity  of  providing  against  the  abuse  of  an  authority  which  was  not  given 
and  that  the  provision  against  the  liberty  of  the  press  afforded  a  clear  implica- 
tion, that  a  right  to  prescribe  proper  regulations  concerning  it,  was  intended 
to  be  vested  in  the  National  Government." 

28  See  chapter  XLV. 


Division  of  Powkes  ijetweex  U.  S.  and  Tffimmm  States.     73 

The  principles  governing  the  deduction  of  implied  from 
express  limitations  upon  the  Federal  Government  are  the  same 
as  those  applicable  to  the  construction  of  implied  powers. 

In  Fairhank  v.  United  States1^  the  court  say :  "  We  are  not 
here  confronted  with  a  question  of  the  extent  of  the  powers 
of  Congress,  but  one  of  the  limitations  imposed  by  the 
Constitution  on  its  action,  and  it  seems  to  us  clear  that 
the  same  rule  and  spirit  of  construction  must  also  be 
recognized.  If  powers  granted  are  to  be  taken  as  broadly 
granted  and  as  carrying  with  them  authority  to  pass  those 
acts  which  may  be  reasonably  necessary  to  carry  them  into  full 
execution;  in  other  words,  if  the  Constitution  in  its  grant  of 
pernors  is  to  be  so  construed  that  Congress  shall  be  able  to  carry 
into  full  effect  the  powers  granted,  it  is  equally  imperative  that, 
where  prohibition  or  limitation  is  placed  upon  the  power  of  Con- 
gress, that  prohibition  or  limitation  should  be  enforced  in  its 
:r  and  to  its  entirety.  It  would  be  a  strange  rule  of  construc- 
tion that  language  granting  powers  is  to  be  liberally  construed, 
and  that  language  of  restriction  is  to  be  narrowly  and  technically- 
construed.  Especially  is  this  true  when,  in  respect  to  grants  of 
powers,  there  is,  as  heretofore  noticed,  the  help  found  in  the  last 
clause  of  the  eighth  section,  and  no  such  helping  clause  in  respect 
to  prohibitions  and  limitations.  The  true  spirit  of  constitutional 
interpretation  in  both  directions  is  to  give  full,  liberal  construc- 
tion to  the  language,  aiming  ever  to  show  fidelity  to  the  spirit 
and  purpose."' 

§  41.  Exclusive  and  Concurrent  Federal  Powers. 

The  legislative  powers  possessed  by  the  Federal  Government 
may  be  divided  into  two  classes ;  the  one  embracing  those  powers 
the  exercise  of  which  is  exclusively  vested  in  the  General  Govern- 
ment; the  other  those  which,  in  default  of  federal  exercise,  may 
be  employed  by  the  States. 

Some  of  the  powers  granted  by  the  Constitution  to  the  General 
Government  are  expressly  denied  to  the  States.     As  to  the  ex- 

2»1S1  U.  S.  2S3;  21  Sup.  Ct.  Rep.  G4S;  45  L.  ed.  862. 


74  United  States  Constitutional  Law. 

elusive  character  of  the  federal  jurisdiction  over  these  there  can- 
not be,  of  course,  any  question.  It  has,  however,  been  often  a 
matter  difficult  of  determination  whether  or  not  various  of  the 
powers  given  to  the  United  States,  but  not  expressly  made  ex- 
clusive, or  denied  to  the  States,  are  so  exclusively  subject  to 
federal  control  that  the  exercise  of  them  by  the  States  is  under 
no  circumstances  permissible.  Shortly  stated,  the  principle  that 
the  Supreme  Court  has  laid  down  for  determining  this  question 
in  each  particular  case  as  it  has  arisen  has  been  the  following: 
As  regards  generally  the  powers  granted  to  the  Xational  Govern- 
ment there  is  a  difference  between  those  which  are  of  such  a 
character  that  the  exercise  of  them  by  the  States  would  be,  under 
any  circumstances,  inconsistent  with  the  general  theory  or 
national  polity  of  the  Constitution,  and  those  not  of  such  a  char- 
acter. As  regards  this  latter  class,  the  Supreme  Court  has  held 
that  as  long  as  Congress  does  not  see  fit  to  exercise  them,  the 
States  may  do  so.  Laws  thus  passed  by  the  States  are,  however, 
of  course  subject  to  suspension  at  any  time  by  the  enactment  by 
Congress  of  laws  governing  the  same  subjects.30 

In  the  early  case  of  Sturges  v.  Crowninshield  31  Chief  Justice 
Marshall,  in  reference  to  the  matter  of  bankruptcy,  laid 
down  the  distinction  between  the  exclusive  and  concurrent 
powers  of  the  Federal  Government,  in  the  following  language: 
"  When  the  American  people  created  a  national  legislature, 
with  certain  enumerated  powers,  it  was  neither  necessary  nor 
proper  to  define  the  powers  retained  by  the  States.  These 
powers  proceed,  not  from  the  people  of  America,  but  from 
the  people  of  the  several  States;  and  remain,  after  the  adoption 
of  the  Constitution,  what  they  were  before,  except  so  far  as  they 
may  be  abridged  by  that  instrument.  In  some  instances,  as  in 
making  treaties,  we  find  an  express  prohibition;  and  this  shows 
the  sense  of  the  convention  to  have  been  that  the  mere  grant  of 

80  By  the  enactment  of  a  federal  law  a  state  law  governing  the  same  subject 
is  not  nullified  but  merely  suspended  during  the  existence  of  the  federal 
statute.  Upon  the  repeal  of  the  federal  statute,  the  state  law  again  operates 
without  any  re-enactment  by  the  State. 

31  4  Wh.  122 ;  4  L.  ed.  529. 


Division  of  Powers  between  U.  S.  and  Member  States.     75 

a  power  to  Congress  did  not  imply  a  prohibition  on  the  States  to 
exercise  the  same  power.  But  it  has  never  been  supposed  that  this 
concurrent  power  of  legislation  extended  to  every  possible  case  in 
which  its  exercise  by  the  States  has  not  been  expressly  prohibited. 
The  confusion  resulting  from  such  a  practice  would  be  endless. 
The  principle  laid  down  by  the  counsel  for  the  plaintiff,  in  this 
respect,  is  undoubtedly  correct.  Whenever  the  terms  in  which  a 
power  is  granted  by  Congress,  or  the  nature  of  the  power  required 
that  it  should  be  exercised  exclusively  by  Congress,  the  subject  is 
as  completely  taken  from  the  state  legislatures  as  if  they  had  been 
expressly  forbidden  to  act  on  it." 

The  principle  thus  stated  by  Marshall  is  a  simple  and  rational 
one,  and  has  never  been  departed  from  by  the  Supreme  Court, 
though  that  court  has  at  times  varied  in  its  judgment  whether  the 
nature  of  a  given  power  is  such  as  to  preclude  state  action  in  the 
absence  of  congressional  regulation. 

In  Houston  v.  Moore32  Justice  Johnson  says :  "  The  Con- 
stitution containing  a  grant  of  powers  in  many  instances 
similar  to  those  already  existing  in  the  state  governments, 
and  some  of  those  being  of  vital  importance  also  to  state 
authority  and  state  legislation,  it  is  not  to  be  admitted  that  the 
mere  grant  of  such  powers  in  affirmative  terms  to  Congress,  does, 
per  se,  transfer  an  exclusive  sovereignty  on  such  subjects  to  the 
latter.  On  the  contrary,  a  reasonable  interpretation  of  that  instru- 
ment necessarily  leads  to  the  conclusion  that  the  powers  so  granted 
are  never  exclusive  of  similar  powers  existing  in  the  States,  unless 
where  the  Constitution  has  expressly,  in  terms,  given  an  exclu- 
sive power  to  Congress,  or  the  exercise  of  a  like  power  is  pro- 
hibited to  the  States,  or  there  is  a  direct  repugnancy  or  incom- 
patibility in  the  exercise  of  it  by  the  States.  The  example  of  the 
first  class  is  to  be  found  in  the  exclusive  legislation  delegated  to 
Congress  over  places  purchased  by  the  consent  of  the  legislature 
of  the  State  in  which  the  same  shall  be,  for  forts,  arsenals,  dock- 
yards, etc. ;  of  the  second  class,  the  prohibition  of  a  state  to  coin 
money  or  emit  bills  of  credit ;  of  the  third  class,  as  this  court  have 

»  5  Wh.  1 ;  5  L.  ed.  19. 


76  United  States  Constitutional  Law. 

already  held,  the  power  to  establish  a  uniform  rule  of  naturaliza- 
tion (Chirac  v.  Chirac,  2  Wh.  259;  4  L.  ed.  2o4)  and  the  dele- 
gation of  admiralty  and  maritime  jurisdiction  (ILartin  v.  Hunter, 
1  Wh.  304;  4  L.  ed.  97).  In  all  other  cases  not  falling  within 
the  classes  already  mentioned,  it  seems  unquestionable  that  the 
States  retain  concurrent  authority  with  Congress,  not  only  upon 
the  letter  and  spirit  of  the  Eleventh  [Tenth  {']  Amendment  of  the 
Constitution,  but  upon  the  soundest  principles  of  general  rea- 
soning." 

So,  later,  in  Cooley  v.  Board  of  Wardens33  the  court  declare: 
"The  grant  of  commercial  power  to  Congress  does  not  contain 
any  terms  which  expressly  exclude  the  States  from  exercising  an 
authority  over  its  subject-matter.  If  they  are  excluded  it  must 
be  because  the  nature  of  the  power  thus  granted  to  Congress 
requires  that  a  similar  authority  should  not  exist  in  the  States." 

Still  later,  in  Cardwell  v.  American  River  Bridge  Co.,34  the 
court,  after  quoting  a  number  of  cases,  say :  "  These  cases 
illustrate  the  general  doctrine  now  fully  recognized,  that  the 
commercial  power  of  Congress  is  exclusive  of  state  authority 
only  when  the  subjects  upon  which  it  is  exerted  are  national 
in  their  character  and  admit  and  require  uniformity  of  regu- 
lations affecting  alike  all  the  States,  and  that  when  the  sub- 
jects within  that  power  are  local  in  their  nature  or  operation,  or 
constitute  mere  aids  to  commerce,  the  States  may  provide  for 
their  regulation  and  management  until  Congress  intervenes  and 
supersedes  their  action." 

Applying  this  principle  the  Supreme  Court  has  held  that  the 
States  may  legislate  regarding  such  matters  as  pilotage,  wharves, 
harbors,  etc. ;  but  may  not,  even  though  Congress  has  not  acted, 
take  any  steps  that  in  effect  will  operate  to  hinder  or  regulate  the 
carrying  on  of  interstate  commerce  itself.  "  The  power  of  Con- 
gress," the  court  has  said  in  Brown  v.  Houston,35  "  is  certainty  30 
far  exclusive  that  no  State  has  power  to  make  any  law  or  regula- 

33  12  How.  299;  13  L.  ed.  996. 

s*  113  U.  S.  205;  5  Sup.  Ct.  Rep.  423;  28  L.  ed.  869. 

35  114  U.  S.  622;  5  Sup.  Ct.  Rep.  1091;  29  L.  ed.  257. 


DiVISIOH    OF   POWEKS   BETWEEN    l\    S<    -VXD   Me.MCEE   STATES.        77 

tion  which  will  affect  the  full  and  unrestrained  intercourse  and 
trade  between  the  States,  as  Congress  has  left  it,  or  which  will  im- 
pose any  discriminating  burden  or  tax  upon  the  citizens  or  prod- 
ucts of  other  States  coming  or  brought  within  its  jurisdiction.  All 
laws  and  regulations  are  restricted  by  natural  freedom  to  some 
extent,  and  where  no  regulation  is  imposed  by  the  government 
which  has  the  exclusive  power  to  regulate,  it  is  an  indication  of 
its  will  that  the  matter  shall  be  left  free.  So  long  as  Congress 
does  not  pass  any  law  to  regulate  commerce  among  the  several 
States,  it  thereby  indicates  its  will  that  the  commerce  shall  be 
free  and  untrammeled,  and  any  regulation  of  the  subject  by  the 
State  is  repugnant  to  such  freedom."  36 

ss  For  a  full  discussion  of  the  concurrent  legislative  powers  of  the  States 
with  reference  to  interstate  and  foreign  commerce,  -see  chapter  XLII.  For  a 
further  discussion  of  concurrent  powers  with  reference  to  the  federal  control 
of  elections,  see  chapter  XXXVIII. 


CHAPTEK  IV. 

THE  SUPREMACY  OF  FEDERAL  AUTHORITY. 
§  42.  Federal  Supremacy. 

The  supremacy  of  the  Federal  Government,  when  operating 
within  its  constitutional  sphere,  over  all  persons  and  bodies  politic 
within  its  territorial  limits,  is  no  longer  open  to  question.  That 
the  extent  of  this  federal  constitutional  sphere  of  action  is  to  be 
determined  in  the  last  resort  by  the  federal  Supreme  Court,  is 
equally  well  settled. 

The  maintenance  of  this  supremacy  unimpaired,  while  at  the 
same  time  preserving  to  the  States  their  proper  autonomy  and 
independence  of  action,  has,  however,  been  a  difficult  task;  and, 
so  long  as  the  federal  form  is  retained,  this  task  will  continue  to 
tax  to  the  utmost  the  legal  and  political  abilities  of  our  courts 
and  political  bodies.  With  a  quite  proper  motive  those  who  have 
controlled  the  public  actions  of  the  States,  and  those  who  have 
guided  the  activities  of  the  United  States,  have  sought  for  their 
respective  governments  the  greatest  possible  constitutional  power 
and  independence,  and,  therefore,  have  not  hesitated  to  occupy 
debatable  territory.  Thus,  without  there  being  any  denial  of  the 
supremacy  of  the  federal  law,  when  operating  within  its  proper 
field,  or  of  the  right  of  the  federal  Supreme  Court  to  determine, 
in  final  resort,  the  extent  of  that  proper  field,  frequent  conflicts 
have  resulted.  These  conflicts  in  their  many  and  varied  forms 
furnish  much  of  the  material  for  the  present  treatise,  and  they 
will  be  severally  considered  in  their  logical  order.  It  will  not 
be  without  value,  however,  to  review  in  this  introductory  chapter 
some  of  the  more  important  cases  in  which  the  supremacy  of 
federal  over  state  law  has  been  generally  and  broadly  asserted. 

The  general  statement  may  be  made  that,  since  the  beginning 
of  our  present  Government,  in  no  instance  has  the  federal  Su- 
preme Court  failed  to  assert  the  supremacy  of  the  federal  power 
when  its  authority  has  been  attacked  by  the  States.  In  1793 
the  court  upheld  its  right  under  the  Constitution,  as  it  then  stood, 

[78] 


The  Supremacy  of  Federal  Authority.  79 

to  entertain  a  suit  against  the  State  of  Georgia  brought  by  a 
citizen  of  another  State.1  The  next  year  the  court  clearly  inti- 
mated that  it  would  disregard  a  state  law  in  conflict  with  a  federal 
treaty.2  The  supremacy  of  federal  law  was  again  asserted  the 
next  year  in  Penhallow  v.  Doane,3  and  in  1796  in  Ware  v. 
Hylton.4  In  Calder  v.  Bull5  the  doctrine  was  definitely  asserted, 
though  its  application  was  not  found  necessary,  that  a  state  law 
in  conflict  with  the  federal  Constitution  would  be  disregarded. 
In  1809,  in  United  States  v.  Peters,6  this  action  became  neces- 
sary and  the  doctrine  was  applied,  Chief  Justice  Marshall 
speaking  for  the  unanimous  court,  saying :  "  If  the  legis- 
latures of  the  several  States  may,  at  will,  annul  the  judg- 
ments of  the  courts  of  the  United  States,  and  destroy  the 
rights  acquired  under  these  judgments,  the  Constitution  be- 
comes itself  a  solemn  mockery;  and  the  nation  is  deprived 
of  the  means  of  enforcing  its  laws  by  the  instrumentality  of  its 
own  tribunals.  So  fatal  a  result  must  be  deprecated  by  all,  and 
the  people  of  Pennsylvania,  as  well  as  the  citizens  of  every  other 
State,  must  feel  a  deep  interest  in  resisting  principles  so  de- 
structive of  the  Union  and  in  asserting  consequences  so  fatal  to 
themselves.  .  .  .  The  State  of  Pennsylvania  can  possess  no 
constitutional  right  to  resist  the  legal  process  which  may  be 
directed  in  this  cause."  "  It  will  be  readily  conceived,"  the  great 
Chief  Justice  concludes,  "  that  the  order  which  this  court  is 
enjoined  to  make  by  the  high  obligations  of  duty  and  of  law,  is 
not  made  without  extreme  regret  at  the  necessity  which  has 
induced  the  application.  But  it  is  a  solemn  duty,  and  therefore 
must  be  performed.  A  peremptory  mandamus  must  be  awarded." 
In  1S10  and  1812  state  laws  were  again  held  void  by  the 
Supreme  Court  because  in  conflict  with  the  federal  Constitution.7 

i  Chifthota  v.  Georgia.  2  Dall.  419 ;  1  L.  ed.  440. 

2  Georgia  v.  Brailsford,  3  Dall.  1 ;  1  L.  ed.  483. 

3  3  Dall.  54;  1  L.  ed.  507. 
*3  Dall.  199;  1  L.  ed.  568. 
5  3  Dall.  386;  1  L.  ed.  048. 
«5  Cr.  115;  3  L.  ed.  53. 

7  Fletcher  v.  Peck   (6  Cr.  87;  3  L.  ed.  162)  ;  New  Jersey  v.  Wilson  (7  Cr. 
164;  3  L.  ed.  303). 


80  United  States  Constitutional  Law. 

Finallv  in  the  great  case  of  McCulloch  v.  Maryland,8  decided  in 
1819,  not  only  was  a  state  law  held  void,  but  the  general  doc- 
trine declared  that  the  State  cannot,  in  the  exercise  of  its 
reserved  powers,  even  of  the  highest  of  them,  interfere  with 
the  operation  of  a  federal  agency  even  though  that  agency  be 
one  of  convenience  and  not  of  necessity  to  the  United 
States.  "  The  States  have  no  power,"  it  was  declared,  "  by  taxa- 
tion or  otherwise,  to  retard,  impede,  burden,  or  in  any  manner 
control  the  operations  of  the  constitutional  laws  enacted  by  Con- 
gress to  carry  into  execution  the  powers  vested  in  the  Federal 
Government.  This  is,  we  think,  the  unavoidable  consequence  of 
that  supremacy  which  the  Constitution  has  declared." 

In  Martin  v.  Hunter's  Lessee,9  decided  in  1816,  and  in  Cohens 
v.  Virginia,10  decided  in  1821,  the  Supreme  Court  upheld  its  au- 
thority to  review,  on  writs  of  error,  decisions  of  state  courts  ad- 
verse to  alleged  federal  rights,  the  exercise  of  this  jurisdiction 
having  been  provided  for  by  the  famous  twenty-fifth  section  of  the 
Judiciary  Act  of  1789.  Justice  Story  who  spoke  for  the  court 
said :  "  The  courts  of  the  United  States  can,  without  question, 
revise  the  proceedings  of  the  executive  and  legislative  authorities 
of  the  States,  and  if  they  are  found  to  be  contrary  to  the  Consti- 
tution may  declare  them  to  be  of  no  legal  validity.  Surely,  the 
exercise  of  the  same  right  over  judicial  tribunals  is  not  a  higher  or 
more  dangerous  act  of  sovereign  power." 

In  Cohens  v.  Virginia,11  Chief  Justice  Marshall,  speaking  for 
the  court,  said :  "  If  it  could  be  doubted,  whether  from 
its  nature  it  [the  National  Government]  were  not  supreme 
in  all  cases  where  it  is  empowered  to  act,  that  doubt  would 
be  removed  by  the  declaration  that  '  this  Constitution  and  the 
laws  of  the  Uiiited  States  which  shall  be  made  in  pursuance 
thereof,  and  all  treaties  made  or  which  shall  be  made  under  the 
authority  of  the  United  States,  shall  be  the  supreme  law  of  the 
land;  and  the  judges  in  every  State  shall  be  bound  thereby,  any- 

S4  Wh.  316;  4  L.  ed.  579. 
9  1  Wh.  304 ;  4  L.  ed.  97. 
™  6  Wh.  264 ;  5  L.  ed.  267. 
116  Wh.  264;  5  L.  ed.  257. 


The  Supremacy  of  Fedeeal  Authority.  81 

thing  in  the  Constitution  or  laws  of  any  State  to  the  contrary 
notwithstanding.'  This  is  the  authoritative  language  of  the 
American  people,  and,  if  the  gentlemen  please,  of  the  American 
States.  .  .  .  The  people  made  the  Constitution  and  the  people 
can  unmake  it.  .  .  .  But  this  supreme  and  irresistible  power 
to  make  or  to  unmake  resides  only  in  the  whole  body  of  the 
people;  not  in  any  subdivision  of  them.  The  attempt  of  any  of 
the  parts  to  exercise  it  is  usurpation,  and  ought  to  be  repelled  by 
those  to  whom  the  people  have  delegated  the  power  of  repelling 
it.  .  .  .  The  framers  of  the  Constitution  were  indeed  unable 
to  make  any  provisions  which  should  protect  that  instrument 
against  a  general  combination  of  the  States,  or  of  the  people  for 
its  destruction;  and,  conscious  of  this  inability,  they  have  not 
made  the  attempt.  But  they  were  able  to  provide  against  the 
operation  of  measures  adopted  in  any  one  State,  whose  tendency 
might  be  to  arrest  the  execution  of  the  laws;  and  this  it  was  the 
part  of  wisdom  to  attempt.  We  think  they  have  attempted  it." 
The  importance  of  the  doctrine  that  was  emphatically  declared 
in  these  two  cases  it  is  impossible  to  exaggerate.  This  the  uphold- 
ers of  States'  Rights  clearly  saw.  Thus  Calhoun  later  wrote:12 
"  The  effect  of  this  is  to  make  the  government  of  the  United  States 
the  sole  judge,  in  the  last  resort,  as  to  the  extent  of  its  powers,  and 
to  place  the  States  and  their  separate  governments  and  institu- 
tions at  its  mercy.  It  would  be  a  waste  of  time  to  undertake  to 
show  that  an  assumption  that  would  destroy  the  relation  of 
co-ordinates  between  the  government  of  the  United  States  and 
those  of  the  several  States, —  which  would  enable  the  former,  at 
pleasure,  to  absorb  the  reserved  powers  and  to  destroy  the  insti- 
tutions, social  and  political,  which  the  Constitution  was  ordained 
to  establish  and  protect,  is  wholly  inconsistent  with  the  federal 
theory  of  government,  though  in  perfect  accordance  with  the 
national  theory.  Indeed,  I  might  go  further  and  assert,  that  it 
is,  of  itself,  all  sufficient  to  convert  it  into  a  national,  consoli- 
dated government." 

■ 

12  Discourse   on    the   Constitution    and    Government    of   the    United    States. 
Works,  I,  338. 
6 


82  United  States  Constitutional  Law. 

During  the  same  year  that  the  case  of  McCulloch  v.  Maryland 
was  decided,  two  other  state  laws  were  held  void  by  the  Supreme 
Court,  one  of  New  York,  in  Sturges  v.  Crowinshield,13  and  one  of 
New  Hampshire  in  Dartmouth  College  v.  Woodward.14 

In  1824,  in  Osborn  v.  Bank  of  the  United  States15  the  attempt 
of  Ohio  to  tax  the  federal  bank  was  declared  unconstitutional.  In 
1829,  in  Weston  v.  Charleston,16  a  municipal  tax  on  stock  of  the 
United  States  held  by  citizens  of  the  city  of  Charleston  was  held 
invalid.  In  1824,  in  the  case  of  Gibbons  v.  Ogden,17  was  begun 
that  long  line  of  decisions  which  has  established  the  power  of  the 
United  States  to  regulate  interstate  commerce  free  from  state  in- 
terference —  an  authority  the  exercise  of  which  has  done  so  much 
to  increase  the  actual  power  and  influence  of  the  National  Govern- 
ment. In  this  case  a  law  of  the  State  of  New  York  was  held 
void. 

In  1823,  a  law  of  Kentucky  was  held  of  no  force  by  the  federal 
court,18  and  in  1830  a  law  of  Missouri  received  similar  treat- 
ment.19 In  1832  in  Worcester  v.  Georgia,20  an  act  of  the  State  of 
Georgia  was  held  void,  but  the  Supreme  Court  failed  to  secure  the 
release  of  the  plaintiff  who  had  been  imprisoned  under  it.  This 
failure  was  due,  however,  not  to  the  weakness  on  part  of  the 
Federal  Government  but  to  the  refusal  of  the  President  to  lend  his 
executive  aid. 

From  1835  to  the  outbreak  of  the  Civil  War  there  can  be  no 
question  but  that  the  Supreme  Court  of  the  United  States  exerted 
a  much  less  potent  influence  in  solidifying  and  expanding  the 
federal  power  than  it  had  exercised  during  the  thirty-five  years 
preceding.  During  the  two  terms  of  office  of  Jackson,  five  vacan- 
cies occurred  in  the  Supreme  Court,   among  them  that  of  the 

iM  Wh.  122;  4  L.  ed.  529. 

»4  Wh.  518;  4  L.  ed.  629. 

«  9  Wh.  738 ;  6  L.  ed.  204. 

M  2  Pet.  449 ;  7  L.  ed.  481. 

"9  Wh.  1;  6  L.  ed.  23. 

is  Green  v.  Biddle   (8  Wh.  1 ;  5  L.  ed.  547). 

"Craig  v.  Missouri  (4  Pet.  410;  7  L.  ed.  903). 

20  6  Pet.   515;    8   L.  ed.   483. 


The  Supremacy  of  Federal  Authority.  83 

Chief-Justiceship  to  which  Taney  was  appointed  in  1835.  The 
effect  of  the  new  appointments  upon  the  views  of  the  court  was 
shown  almost  immediately.  In  the  case  of  Briscoe  v.  Bank  of 
Kentucky,21  which  had  been  argued  just  before  the  death  of  Mar- 
shall, the  issue  by  the  bank  of  bills  of  credit  had  been  held  uncon- 
stitutional. A  rehearing  being  granted  and  the  case  coming  on 
for  argument  under  Taney,  the  action  of  the  bank  was  sustained 
and  the  previous  decision  reversed.  The  decision  marked  the  be- 
ginning of  a  new  era  in  the  history  of  constitutional  interpreta- 
tion. Up  to  this  time  the  court  had,  upon  all  possible  occasions, 
upheld  the  General  Government  in  the  exercise  of  its  powers,  and 
had  held  the  States  strictly  to  the  obligations  imposed  upon  them 
by  the  Constitution.  Xow,  however,  it  began  if  anything  to  lean 
the  other  way.  In  Briscoe  v.  Bank  of  Kentucky,  departing  from 
its  former  practice,  by  an  extremely  loose  interpretation  of  a  con- 
stitutional limitation  that  had  been  laid  upon  the  States,  it  ren- 
dered practically  nugatory  one  of  the  provisions  of  the  Constitu- 
tion. Other  decisions  similarly  favorable  to  States'  Rights  fol- 
lowed. In  the  case  of  City  of  Xew  York  v.  Miln,22  a  state  law  was 
sustained  which  might  easily  have  been  held  an  interference  with 
the  federal  control  of  interstate  commerce.  In  the  Charles  River 
Bridge  Co.  v.  Warren  Bridge  Co.23  a  doubtful  state  law  was  again 
upheld.  In  the  License  Cases24  interpretations  of  the  Commerce 
Clause  favorable  to  the  States  were  given.  In  Kentucky  v.  Denni- 
son25  it  was  held  that  though  the  federal  Constitution  made  it  a 
duty  of  a  State  to  surrender  to  another  State  a  fugitive  from 
justice  from  that  State,  there  was  no  constitutional  means  by 
which  the  Federal  Government  could  compel  the  performance  of 
that  duty.  In  all  these  cases  the  States  were  favored  at  the 
expense  of  the  authority  of  the  General  Government. 

In  1841,  in  Prigg  v.  Pennsylvania,20  a  state  law  attempting  the 
regulation  of  the  return  of  fugitive  slaves  was  held  unconstitu- 

2i  11  Pet.  257;  9  L,  ed.  709. 

22  11  Pet.  102;  9  L.  ed.  648. 

23  11  Pet.  420;  9  L.  ed.  773. 

24  5  How.  501;   12  L.  ed.  256. 

25  24  How.  66:   16  L.  ed.  717. 

26  16  Pet.  539;   10  L.  ed.  1060. 


84  United  States  Constitutional  Law. 

tional  and  void  on  the  ground  that  this  subject  was  wholly  with- 
drawn from  the  control  of  the  States.  Taney,  however,  though 
concurring  with  the  majority  in  holding  unconstitutional  the  par- 
ticular law  in  question,  took  pains  to  assert  that  there  was  no  con- 
stitutional incompetence  on  the  part  of  the  State  to  pass  laws  the 
intention  and  actual  effect  of  which  were  to  "assist  the  Federal 
Government  in  the  capturing  and  returning  of  fleeing  negroes. 

Regarding  the  attitude  of  the  Supreme  Court  during  this 
period,  the  important  fact  is  to  be  noticed  that,  though  it  threw 
the  weight  of  its  influence  upon  the  side  of  the  States  so  far  as 
concerned  a  liberal  interpretation  of  the  powers  reserved  to  them 
by  the  Constitution,  not  once,  in  the  slightest  measure,  did  it  dur- 
ing these  years,  any  more  than  it  had  done  in  the  years  preceding, 
intimate  that  the  actual  legal  and  political  supremacy  was  not 
vested  in  the  Xational  Government.  The  position  of  Taney  and 
of  the  court  upon  this  point  was  clearly  shown  in  the  judgment 
rendered  and  in  the  opinion  delivered  in  the  case  of  Ableman  v. 
Booth,27  decided  in  1859.  The  facts  of  this  case  were  these:  Booth 
had  been  tried  in  a  lower  federal  court  for  a  violation  of  the 
federal  fugitive  slave  law  of  1S50,  and  had  been  found  guilty  and 
sentenced  to  imprisonment.  The  highest  court  of  the  State  of 
Wisconsin,  however,  stepped  in,  disregarded  this  judgment  and  re- 
leased the  prisoner.  Not  only  this  but  it  went  on  to  declare  that 
its  decision,  thus  rendered,  was  subject  to  no  appeal  and  was  con- 
clusive upon  all  the  courts  of  the  United  States ;  and  when  a  writ 
of  error  from  the  United  States  Supreme  Court  directed  to  the 
Wisconsin  court  was  issued,  J;he  clerk  of  the  state  court  replied 
to  it  that  he  had  been  directed  to  make  no  return,  and  refused 
to  make  up  and  send  a  record  of  the  case  to  the  federal  court. 
Thereupon  the  Attorney-General  of  the  United  States  filed  in 
the  Supreme  Court  of  the  United  States  an  uncertified  record 
which  it  was  ordered  should  be  received  as  though  returned  by 
the  clerk  of  the  Wisconsin  court.  Having  thus  gotten  the  case 
before  it,  despite  the  resistance  of  the  State,  the  decision  of  the 

27  21  How.  506;  16  L.  ed.  169. 


The  Supremacy  of  Federal  Authority.  85 

Supreme  Court  thereupon  was  au  emphatic  condemnation  of  the 
State's  action.  u  2so  State,  judge  or  court/'  declared  Taney 
who  rendered  the  opinion  of  the  court,  u  after  they  are  judicially 
informed  that  the  party  is  imprisoned  under  the  authority  of  the 
United  States,  has  any  right  to  interfere  with  him,  or  require  him 
to  be  brought  before  them.  And  if  the  authority  of  the  State,  in 
form  of  judicial  process  or  otherwise,  should  attempt  to  control 
the  marshal  or  other  authorized,  officer  or  agent  of  the  United 
States,  in  any  respect,  in  the  custody  of  his  prisoner,  it  would  be 
his  duty  to  resist  it,  and  to  call  to  his  aid  any  force  that  might  be 
necessary  to  maintain  the  authority  of  law  against  illegal  inter- 
ference." 

From  the  foregoing  brief  review  it  is  thus  seen  that  prior  to 
the  Civil  War  the  supremacy  of  the  federal  law  had  been  sus- 
tained under  a  wide  variety  of  circumstances  and  that  the  result- 
ing subordinate  status  of  the  States  had  been  made  fully  evident 
That  status  the  people  of  certain  of  the  Southern  States  in  1861 
decided  no  longer  to  support,  and  in  defense  of  their  views,  de- 
clared their  respective  commonwealths  independent  of  the  Union, 
and  in  support  of  this  independence  resorted  to  the  arbitrament 
of  war.  That  this  secession  was  an  illegal  act,  and  that,  therefore 
the  seceding  States,  from  the  constitutional  viewpoint,  never 
were  out  of  the  Union,  has  repeatedly  been  declared  by  the 
Supreme  Court.  In  Texas  v.  White28  the  Union  was  de- 
clared to  be  "  an  indestructible  Union  composed  of  inde- 
structible States."  The  opinion  continues :  "  When,  there- 
fore, Texas  became  one  of  the  United  States,  she  entered  into  an 
indissoluble  relation.  .  .  .  The  act  which  consummated  her 
admission  into  the  Union  was  something  more  than  a  compact; 
it  was  the  incorporation  of  a  new  member  into  the  political  body. 
The  union  between  Texas  and  the  other  States  was  as  complete, 
as  perpetual  and  as  indissoluble  as  the  union  between  the  original 
States.  There  was  no  place  for  reconsideration,  or  revocation, 
except  through  revolution,  or  through  the  consent  of  the  States. 
Considered^  therefore,  as  transactions  under  the  Constitution,  the 

28  7  Wall.  TOO;   19  L.  ed.  227. 


86  United  States  Constitutional  Law. 

ordinance  of  secession,  adopted  by  the  convention  and  ratified  by 
a  majority  of  the  citizens  of  Texas,  and  all  the  acts  of  her  legis- 
lature intended  to  give  effect  to  that  ordinance,  were  absolutely 
null.  They  were  utterly  without  operation  in  law.  The  obliga- 
tions of  the  State,  as  a  member  of  the  Union,  and  of  every  citizen 
of  the  State,  as  a  citizen  of  the  United  States,  remained  perfect 
and  unimpaired.  It  certainly  follows  that  the  State  did  not  cease 
to  be  a  State,  nor  her  citizens  to  be  citizens  of  the  Union." 

In  Knox  v.  Lee29  the  court  said,  speaking  through  the  mouth 
of  Justice  Bradley :  "'  The  doctrine  so  long  contended  for,  that 
the  federal  Union  was  a  mere  compact  of  States,  and  that  the 
States,  if  they  chose,  might  annul  and  disregard  the  acts  of  the 
national  legislature,  or  might  secede  from  the  Union  at  their 
pleasure,  and  that  the  General  Government  had  no  power  to  coerce 
them  into  submission  to  the  Constitution,  should  be  regarded  as 
definitely  and  forever  overthrown.  This  has  been  finally  affected 
by  the  national  power,  as  it  had  often  been  before  by  overwhelm- 
ing argument.  .  .  .  The  United  States  is  not  only  a  govern- 
ment, but  it  is  a  National  Government,  and  the  only  government 
in  this  country  that  has  the  character  of  nationality." 

§  43.  The  States  May  Not  Be  Coerced. 

In  a  Confederacy  which  is,  in  effect,  a  league  of  completely 
sovereign  States,  such  coercion  as  it  may  be  necessary  for  the 
central  power  to  apply,  may  in  certain  cases  be  directed  directly 
against  the  States  as  such. 

In  a  Federal  State  such  as  the  United  States  is  now  agreed  to 
be,  the  supremacy  of  the  national  authority  is  never  maintained 
by  direct  action  against  its  member  Commonwealths,  but  is  ex- 
hibited in  its  authority  to  execute  its  will  upon  all  persons  subject 
to  its  jurisdiction,  anything  in  the  Constitution  or  laws  of  any 
'State  to  the  contrary  notwithstanding,  and  irrespective  of  what 
may  be  the  opinions  and  effects  of  those  exercising  the  political 
powers  of  those  States. 

2»12  Wall.  457;  20  L.  ed.  287. 


The  Supremacy  of  Federal  Authority.  87 

The  individual  Commonwealths,  having  a  political  status  only 
as  members  of  the  Union,  have  not  the  legal  power  to  place  them- 
selves, as  political  bodies,  in  opposition  to  the  national  will.  Their 
legislatures,  their  courts,  or  their  executive  officials  may  attempt 
acts  unwarranted  by  the  federal  Constitution  or  federal  law,  and 
they  may  even  command  that  their  citizens  generally  shall  refuse 
obedience  to  some  specified  federal  laws  or  the  federal  authorities 
generally,  but  in  all  such  cases,  such  acts  are,  legally  viewed, 
simply  void,  and  all  individuals  obeying  them  subject  to  punish- 
ment as  offenders  against  national  law.  The  fact  that  their  re- 
spective States  have  directed  them  to  refuse  obedience  or  to  offer 
resistance  to  the  execution  of  the  federal  laws  can  afford  them 
no  immunity  from  punishment,  for  no  one  can  shelter  himself 
behind  an  unconstitutional  law,  such  a  law  being,  in  truth,  as 
we  have  seen,  not  a  law  at  all,  but  only  an  unsuccessful  attempt 
at  a  law. 

Thus  President  Lincoln,  in  his  first  inaugural  message,  as- 
sumed the  correct  constitutional  position  when  he  declared  that 
the  Federal  Government  could  not  wage  public  war  against  a 
State,  not,  however,  because  of  a  lack  of  constitutional  authority 
to  maintain  in  every  respect  its  supremacy,  but  because  from  the 
very  nature  of  the  Union  a  State,  qua  State,  could  not  place  itself 
in  a  position  where  coercion  could  be  applied  to  it.  After  an  argu- 
ment tending  to  show  the  sovereign  character  of  the  Union,  and 
that  it  was  intended  to  be  perpetual,  he  declared:  "It  follows 
from  these  views  that  no  State  upon  its  own  mere  motion  can  law- 
fully get  out  of  the  Union ;  that  resolves  and  ordinances  to  that 
effect  are  legally  void,  and  that  acts  of  violence  within  any  State 
or  States  against  the  authority  of  the  United  States  are  insur- 
rectionary or  revolutionary,  according  to  circumstances.  1 
therefore  consider  that,  in  view  of  the  Constitution  and  the  laws, 
the  Union  is  unbroken,  and  to  the  extent  of  my  ability  I  shall 
take  care,  as  the  Constitution  itself  expressly  enjoins  upon  me, 
that  the  laws  of  the  Union  be  faithfully  executed  in  all  the  States. 
In  doing  this  there  needs  to  be  no  bloodshed  or  violence, 
and  there  shall  be  none  unless  it  be  forced  upon  the  national  au- 


88  United  States  Constitutional  Law. 

thority.  The  power  conferred  upon  me  will  be  used  to  hold, 
occupy  and  possess  the  property  and  places  belonging  to  the  Gov- 
ernment and  to  collect  the  duty  and  imposts;  but  beyond  what 
may  be  necessary  for  these  objects,  there  will  be  no  invasion,  no 
using  of  force  against  or  among  the  people  anywhere." 

In  taking  this  position  Lincoln  had  to  treat  the  war  when  it 
began  as  merely  an  insurrection  in  which  the  coercion  and  punish- 
ments were  to  be  applied  to  individuals.  Thus  he  began  his 
Proclamation  of  April  15,  1861,  in  which  he  called  for  seventy- 
five  thousand  of  the  militia  of  the  States,  by  saying:  "Whereas 
the  laws  of  the  Irnited  States  have  been  for  some  time  past  and 
now  are  opposed  and  the  execution  thereof  obstructed  in  the 
States  of  South  Carolina,  Georgia,  Alabama,  Florida,  Mississippi, 
Louisiana  and  Texas,  by  combinations  too  powerful  to  be  sup- 
pressed by  the  ordinary  course  of  judicial  proceedings:"  and 
closed  by  commanding  "  the  persons  composing  the  combinations 
aforesaid  to  disperse  and  retire  peaceably  to  their  respective  abodes 
within  twenty  days  from  this  date." 

As  further  showing  the  theory  as  to  the  nature  of  the  contest 
that  was  held  by  the  National  Government  is  the  fact  that  Con- 
gress did  not  "  declare  war "  against  the  South,  or,  when  the 
struggle  was  over,  dnter  into  a  treaty  of  peace  with  the  Southern 
Confederacy.  The  L'nited  States  did  not  recognize  that  the  Con- 
federacy had  or  could  have  a  standing  as  a  political  power  with 
which  it  might  deal  as  with  a  foreign  State.  One  after  another, 
the  surrender  of  his  forces  by  each  Confederate  general  was  ac- 
cepted as  an  act  of  war  and  thus  the  Confederacy  left  to  collapse 
and  disappear  without  any  formal,  official  act  to  mark  its  demise. 
The  possession  by  the  Federal  Government  of  full  power  to 
protect  any  right  and  to  enforce  any  law  of  its  own  at  any  time, 
and  at  any  place  within  its  territorial  limits,  any  resistance  of 
private  individuals,  or  state  officials,  acting  with  or  without  the 
authority  of  state  law  to  the  contrary  notwithstanding,  has  been 
uniformly  asserted  by  the  Supreme  Court  whenever  such  an  as- 
sertion has  been  necessary.  Thus  in  1821,  in  the  case  of 
Osborn  v.  Bank  of  the  United  States,30  Chief  Justice  Mar- 
so  9  Wh.  738;  6  L.  ed.  204. 


The  Supremacy  of  Federal  Authority.  89 

shall  met  the  argument  that  the  suit,  being  against  one 
of  its  officials  and  based  upon  acts  committed  by  him  in  his 
official  capacity,  was  in  fact  a  suit  against  the  State  of  Ohio,  one, 
therefore,  which,  under  the  Eleventh  Amendment,  the  court  was 
without  authority  to  try,  by  declaring:  "A  denial  of  jurisdiction 
forbids  all  inquiry  into  the  nature  of  the  case.     It  applies  to  all 

86  perfectly  clear  in  themselves;  to  cases  where  the  [Xational] 
Government  is  in  the  exercise  of  its  best  established  and  most 

utial  powers,  as  well  as  to  those  which  may  be  deemed  ques- 
tionable. It  asserts  that  the  agents  of  a  State,  alleging  the  au- 
thority of  a  law,  void  in  itself,  because  repugnant  to  the  Constitu- 
tion, may  arrest  the  execution  of  any  law  of  the  United  States. 
It  maintains  that  if  a  State  shall  impose  a  fine  or  penalty  on  any 
person  employed  in  the  execution  of  any  law  in  the  United  States, 
it  may  levy  that  fine  or  penalty  by  a  ministerial  officer,  without 
the  sanction  of  even  its  own  courts;  and  that  the  individual, 
though  he  perceives  the  approaching  danger,  can  obtain  no  pro- 
tection from  the  judicial  department  of  the  [National]  Govern- 
ment. .  .  .  The  question,  then,  is  whether  the  Constitution 
of  the  United  States  has  provided  a  tribunal  which  can  peace- 
fully and  rightfully  protect  those  who  are  employed  in  carrying 
into  execution  the  laws  of  the  Union  from  the  attempts  of  a 
particular  State  to  resist  the  execution  of  those  laws."  That 
Marshal]  answered  this  question  in  the  affirmative  needs  not  be 
said. 

The  attitude  of  the  federal  Supreme  Court  in  the  case  of  Able- 
man  v.  Booth,  decided  in  1859,  has  already  been  mentioned. 
Again,  after  the  Civil  War,  the  court  said,  when  confronted  by 
the  proposition  that  l>ecause  the  United  States  was  without  any 
general  criminal  jurisdiction  it  might  not  punish  criminally 
individuals  who  had  violated  certain  of  its  laws  relating  to  con- 

-ional  elections:  "  It  is  argued  that  the  preservation  of  peace 
and  good  order  in  society  is  not  within  the  powers  confided  to  the 
government  of  the  United  States,  but  belongs  exclusively  to  the 
States.  Here  again  we  are  met  with  the  theory  that  the  govern- 
ment of  the  United  States  does  not  rest  upon  the  soil  and  terri- 


90  United  States  Constitutional  Law. 

tory  of  the  country.  We  think  that  this  theory  is  founded  on  an 
entire  misconception  of  the  nature  and  power  of  that  government. 
We  hold  it  to  be  an  incontrovertible  principle  that  the  government 
of  the  United  States  may,  by  means  of  physical  force,  exercised 
through  its  official  agents,  execute  on  every  foot  of  American  soil 
the  powers  and  functions  that  belong  to  it.  This  necessarily  in- 
volves the  power  to  command  obedience  to  its  laws,  and  hence 
the  power  to  keep  the  peace  to  that  extent."  31 

Finally  in  the  Debs  case,32  a  case  growing  out  of  the  great 
railway  strike  of  1894,  the  plenitude  of  the  federal  power  was 
emphatically  stated.  Speaking  of  the  right  of  the  Xational  Gov- 
ernment to  protect,  by  armed  force  if  necessary,  interstate  com- 
merce and  the  transportation  of  the  mails,  the  court  said :  "If. 
the  inhabitants  of  a  single  State  or  a  great  body  of  them  should 
combine  to  obstruct  interstate  commerce  or  the  transportation  of 
the  mails,  prosecution  of  such  offenses  had  in  such  a  community 
would  be  doomed  in  advance  to  failure.  And  if  the  certainty  of 
such  failure  was  known  and  the  National  Government  had  no 
other  way  to  enforce  the  freedom  of  interstate  commerce  and  the 
transportation  of  the  mails  than  by  prosecution  and  punishment 
for  interference  therewith,  the  whole  interests  of  the  Xation  in 
these  respects  would  be  at  the  absolute  mercy  of  a  portion  of  the 
inhabitants  of  a  single  State.  But  there  is  no  such  impotency  in 
the  Xational  Government.  The  entire  strength  of  the  Xation  may 
be  used  to  enforce  in  any  part  of  the  land  the  full  and  free  exercise 
of  all  national  powers  and  the  security  of  all  rights  intrusted  by 
the  Constitution  to  its  care.     The  strong  arm  of  the  Xational 

31  Ex  parte  Siebold  ( 100  U.  S.  371 ;  25  L.  ed.  717 ) .    In  United  States  v.  Reese 
(92  U.  S.  214;  23  L.  ed.  563),  1875,  the  court  said:     "  Rights  and  immunities 

created  by  or  dependent  upon  the  Constitution  of  the  United  States  can  be 
protected  by  Congress.  The  form  and  manner  of  the  protection  may  be  such 
as  Congress,  in  the  legitimate  exercise  of  its  legislative  discretion,  shall  pro- 
vide. These  may  be  varied  to  meet  the  necessities  of  the  particular  right  to  be 
protected."  And  in  Strauder  v.  West  Virginia  (100  U.  S.  303;  25  L.  ed.  664), 
the  court  said:  "A  right  or  an  immunity,  whether  created  by  the  Constitu- 
tion, or  only  guaranteed  by  it,  even  without  any  express  delegation  of  power, 
may  be  protected  by  Congress." 

32  In  re  Debs   (158  U.  S.  564;  15  Sup.  Ct.  Rep.  900;  39  L.  ed.  1092). 


The  Supremacy  of  Federal  Authority.  91 

Government  may  be  put  forth  to  brush  away  all  obstructions  to 
the  freedom  of  interstate  commerce  or  the  transportation  of  the 
mails.  If  the  emergency  arises,  the  army  of  the  Xation  and  all 
its  militia  are  at  the  service  of  the  Xation  to  compel  obedience  to 

its  laws.'' 

§  44.  Conclusion. 

The  foregoing  cases  sufficiently  illustrate  the  general  principle 
of  the  supremacy  of  the  federal  law.  The  maintenance  of  this 
principle,  by  the  exemption  of  federal  agencies  from  state  in- 
terference by  taxation,  by  means  of  federal  writs  of  habeas  corpus 
and  of  injunction  to  state  authorities,  and  by  the  removal  of  suits 
from  state  to  federal  courts,  will  be  discussed  in  the  next  succeed- 
ing chapters. 


CHAPTER  V. 

THE  MAINTENANCE  OF  FEDERAL  SUPREMACY  — THE  FREEDOM  OF 
FEDERAL  AGENCIES  FROM  INTERFERENCE  OR  CONTROL  BY  THE 
STATES. 

§  45.  State  Taxation  of  Federal  Governmental  Agencies. 

The  successful  maintenance  of  a  federal  government,  under  any 
circumstances  a  most  difficult  task,  is  an  especially  difficult  one 
in  the  United  States  where  federal  functions  are  exclusively  per- 
formed by  federal  agents  and  organs,  and  state  functions  by  state 
agents  and  organs.1  This  has  necessitated  the  maintenance  of  a 
complete  machinery  of  government  for  the  United  States,  and, 
similarly,  a  complete  political  organization  for  each  of  the  member 
States  of  the  Union.  This  arrangement  carries  with  it  the  general 
doctrine  that  the  States  may  not  in  any  wise  interfere  with  the 
operation  of  a  federal  organ  or  with  the  exercise  by  a  fed- 
eral agent  of  his  official  functions;  and  that,  conversely,  the 
Federal  Government  may  not  interfere  with  the  operation  of 
a  state  agency  or  the  official  actions  of  state  officials  when 
acting  within  the  constitutional  limits  reserved  to  the  States. 
Illustrations  of  these  general  principles  will  appear  throughout 
this  treatise.  Their  scope  and  significance  may,  however,  be  best 
exhibited  in  their  application  to  the  federal  and  state  taxing 
power,  and  to  a  discussion  of  this  especial  phase  of  the  subject 
this  and  the  next  succeeding  paragraphs  will  be  devoted. 

That  a  State  may  not,  in  the  exercise  of  its  reserved  powers, 
interfere  with  a  federal  governmental  agency  was  settled  once 
for  all  by  the  decision  of  the  Supreme  Court  in  AlcCulloch  v. 

i  It  has  indeed  been  held  that  the  United  States  may  permit  or  even  request 
a  state  official  to  perform  a  federal  service,  but  there  is  no  constitutional 
means  by  which  such  state  official  may,  without  the  consent  of  his  State,  be 
compelled  to  do  so.  The  same  is  true  as  to  the  performance  by  a  federal 
official  of  a  state  duty.  The  reason  for  this  rule  is  the  obvious  one  that 
otherwise  it  would  be  possible  for  one  government  to  so  burden  with  its  own 
duties  the  officials  of  the  other  government  as  seriously  to  interfere  with  the 
performance  by  those  officials  of  the  duties  laid  upon  them  by  their  own 
governments. 

[92] 


The  Maixtexaxce   of   Feueijal  Supbemac  y. 

Maryland.  This  case  was  all  the  stronger  in  that  the  federal 
agency,  with  whose  activity  it  was  alleged  that  Maryland  had  at- 
tempted to  interfere  by  taxing  it,  was  an  agency  neither  essential 
to  the  Xational  Government  nor  expressly  provided  for  by  the 
Constitution.  The  power  to  establish  a  Xational  Bank  was  at 
most  only  an  implied  one,  and,  in  fact,  its  constitutionality  was 
very  widely  denied,  and,  years  after  this,  a  bill  providing  for  the 
establishment  by  the  Xational  Government  of  a  similar  institution 
was  vetoed  by  President  Jackson  upon  the  ground  of  its  unconsti- 
tutionality. But  in  this  case  Maryland  had  not  only  denied  the 
constitutionality  of  the  bank  but  took  the  position  that,  even  were 
it  constitutional,  she  had,  under  the  general  power  reserved  to 
her  of  taxing  all  occupations  carried  on  within  her  territorial 
limits,  the  right  to  tax  such  branches  of  the  bank  as  might  be 
located  within  her  borders.  Thus,  in  this  case,  the  State  of  Mary- 
land did  not  claim  that  she  might  directly  and  deliberately  in- 
terfere with  the  operation  of  a  federal  law,  but  that  the  exercise 
by  her  of  an  otherwise  legitimate  authority  could  not  be  declared 
unconstitutional  simply  upon  the  ground  that,  indirectly,  or  by  re- 
mote possibility,  its  effect  was,  o:*  might  be,  to  interfere  with  the 
exercise  of  a  legitimate  federal  power.  In  other  words,  the  State 
took  the  ground  that,  while  acting  within  their  reserved  spheres 
of  authority,  the  States  were  as  independent  and  sovereign  as  was 
the  Union  while  operating  within  its  constitutional  sphere;  and 
that,  therefore,  their  direct  interests,  within  such  spheres,  might 
not  properly  be  subordinated  to  the  merely  indirect  interests  of 
the  Union.  This  position  the  Supreme  Court  declared  an  invalid 
one.  The  reasoning  of  Marshall,  who  rendered  the  opinion,  was 
as  follows :  u  The  sovereignty  of  a  State,"  he  declared,,  "  extends 
to  everything  which  exists  by  its  own  authority,  or  is  introduced 
by  its  permission;  but  does  it  extend  to  those  means  which  are  em- 
ployed by  CoBgreaa  to  carry  into  execution  powers  conferred  on 
that  body  by  the  people  of  the  United  States  I  We  think  it  demon- 
strable that  it  does  not.  These  powers  are  not  given  by  the  people 
of  a  single  State.  They  are  given  by  the  people  of  the  United 
States  to  a  government  whose  laws,  made  in  pursuance  of  the  Con- 


94  United  States  Constitutional  Law. 

stitution,  are  declared  to  be  supreme."  Then,  after  referring  to 
the  fact  that  the  power  to  tax  might  be  used  to  destroy,  he  con- 
tinued :  "  That  there  is  a  plain  repugnance  in  conferring  on  one 
government  power  to  control  the  constitutional  measures  of  an- 
other, which  other  with  respect  to  those  very  measures  is  declared 
supreme  over  that  which  exerts  the  control  .  .  .  [is  a]  propo- 
sition not  to  be  denied.  ...  If  the  States  may  tax  one  in- 
strument employed  by  the  government  in  the  execution  of  its  pow- 
ers, they  may  tax  any  and  every  instrument.  They  may  tax  the 
mail;  they  may  tax  the  mint;  they  may  tax  patent  rights;  they 
may  tax  the  papers  of  the  custom-house;  they  may  tax  judicial 
processes;  they  may  tax  all  the  means  employed  by  the  govern- 
ment to  an  excess  which  would  defeat  all  the  ends  of  government* 
This  was  not  intended  by  the  American  people.  They  did  not  de- 
sign to  make  their  government  dependent  on  the  American  States. 
.  .  .  The  Court  has  bestowed  on  this  subject  its  most  deliber- 
ate consideration.  The  result  is  a  conviction  that  the  States  have 
no  power  by  taxation,  or  otherwise,  to  retard,  impede,  burden, 
or  in  any  manner  control  the  operations  of  the  constitutional  laws 
enacted  by  Congress  to  carry  into  execution  the  powers  vested  in 
the  General  Government.  This  is,  we  think,  the  unavoidable 
consequences  of  that  supremacy  which  the  Constitution  has  de- 
clared." 

In  Osborn  v.  Bank  of  the  United  States,2  decided  in 
1824,  the  question  of  the  power  of  a  State  to  tax  the  Bank 
of  the  United  States  was  reopened  by  the  State  of  Ohio,  and 
a  strenuous  attempt  made  to  have  the  Supreme  Court  of  the 
United  States  modify  the  views  it  had  expressed  in  McCulloch 
v.  Maryland.  The  argument  was  urged  that  a  distinction  should 
be  made  between  the  bank  as  a  fiscal  agent  of  the  government  and 
as  a  private  company  trading  with  individuals  for  its  own  ad- 
vantage; and  that  so  far  as  it  existed  and  operated  in  this  latter 
capacity  it  might  be  taxed  and  otherwise  regulated  by  the  States. 
The  Supreme  Court  held,  however,  that  in  practice  the  distinction 
had  no  existence.  "  To  tax  its  faculties,  its  trade,  and  occupa- 
tion," it  declared,  "  is  to  tax  the  bank  itself.     To  destroy  or  pre- 

2  9  \Yh.  738;  6  L.  ed.  204. 


The  Maintenance  of  Fedekal  Supremacy.  95 

serve  the  one  is  to  destroy  or  preserve  the  other."  The  opinion 
continues:  "  The  bank  is  not  considered  as  a  private  corporation,, 
whose  principal  object  is  individual  trade  and  individual  profit, 
but  as  a  public  corporation,  created  for  public  and  national  pur- 
poses. That  the  mere  business  of  banking  is,  in  its  own  nature,  a 
private  business,  and  may  be  carried  on  by  individuals  or  com- 
panies having  no  political  connection  with  the  government,  is 
admitted;  but  the  bank  is  not  such  an  individual  or  company. 
It  was  not  created  for  its  own  sake,  or  for  private  purposes.  It 
has  never  been  supposed  that  Congress  could  create  such  a  cor- 
poration. .  .  .  The  operations  of  the  bank  are  believed 
not  only  to  yield  the  compensation  for  its  services  to  the  govern- 
ment, but  to  be  essential  to  the  performance  of  those  services. 
Those  operations  give  its  value  to  the  currency  in  which  all  the 
transactions  of  the  government  are  conducted.  They  are,  there- 
fore, inseparably  connected  with  those  transactions.  They  enable 
the  bank  to  render  those  services  to  the  nation  for  which  it  wa3 
created,  and  are,  therefore,  of  the  very  essence  of  its  character,  as 
national  instruments.  The  business  of  the  bank  constitutes  its 
capacity  to  perform  its  functions,  as  a  machine  for  the  money 
transactions  of  the  government  Its  corporate  character  is  merely 
an  incident,  which  enables  it  to  transact  the  business  more  benefic- 
ially. .  .  .  Considering  the  capacity  of  carrying  on  the 
trade  of  banking,  as  an  important  feature  in  the  character  of  this 
corporation,  which  was  necessary  to  make  it  a  fit  instrument  for 
the  objects  for  which  it  was  created,  the  court  adheres  to  its  de- 
cision in  the  case  of  McCulloch  v.  The  State  of  Maryland,  and  is 
of  opinion  that  the  act  of  the  State  of  Ohio,  which  is  certainly 
much  more  objectionable  than  that  of  the  State  of  Maryland,  is  re- 
pugnant to  a  law  of  the  United  States  made  in  pursuance  of  the 
Constitution,  and,  therefore,  void." 

§  46.  Property  of  Federal  Agencies  may  be  Taxed. 

In  McCulloch  v.  Maryland  and  Osborn  v.  Bank  of  Ohio  the 
States  had  attempted  to  levy  a  tax,  in  the  nature  of  a  franchise 


96  United  States   Constitutional  Law. 

tax,  upon  the  operations  of  the  federal  bank.  In  the  Maryland 
case  Chief  Justice  Marshall  said:  "  The  opinion  does  not  deprive 
the  State  of  any  resources  which  the)'  originally  possessed.  It 
does  not  extend  to  a  tax  paid  by  the  real  property  of  the  bank, 
in  common  with  the  other  real  property  within  the  State,  nor  to 
a  tax  imposed  on  the  interest  which  the  citizens  of  Maryland  may 
hold  in  this  institution,  in  common  with  other  property  of  the 
same  description  throughout  the  State."' 

This  dictum  of  Marshall  received  judicial  application  in 
Thomson  v.  Union  Pacific  li.  Co.,3  in  which  it  was  held 
that,  in  the  absence  of  any  legislation  of  Congress  directing 
otherwise,  the  property  of  a  railroad  company,  chartered  bv 
a  State,  but  performing  federal  services,  might  be  taxed  by 
the  State.  Chief  Justice  Chase,  speaking  for  a  unanimous 
court,  said.  "  We  do  not  think  ourselves  warranted  in  ex- 
tending the  exemption  [from  state  taxation]  established  by  the 
case  of  McCulloch  v.  Maryland  beyond  its  terms.  We  cannot 
apply  it  to  the  case  of  a  corporation  deriving  its  existence  from 
state  law,  exercising  its  franchise  under  state  law,  and  holding 
the  property  within  state  jurisdiction  and  under  state  protection. 
.  .  .  We  think  there  is  a  clear  distinction  between  the 
means  employed  by  the  government  and  the  property  of  agents 
employed  by  the  government.  Taxation  of  the  agency  is  taxation 
of  the  means,  taxation  of  the  property  of  the  agent  is  not  always, 
or  generally,  taxation  of  the  means.  Xo  one  questions  that  the 
power  to  tax  all  property,  business  and  persons,  within  their  re- 
spective limits,  is  original  in  the  States  and  has  never  been  sur- 
rendered. It  cannot  be  so  used,  indeed,  as  to  defeat  or  hinder 
the  operations  of  the  Xational  Government ;  but  it  will  be  safe  to 
conclude,  in  general,  in  reference  to  persons  and  state  corpora- 
tions employed  in  government  service,  that  when  Congress  has  not 
interposed  to  protect  their  property  from  state  taxation,  such 
taxation  is  not  obnoxious  to  that  objection."  4 

8  9  Wall.  579;  m  L.  ed.  792. 

*  The  objection  to  sustaining  the  principle  that  the  property  of  corporations 
performing  federal  services  is  by  that  fact  exempt  from  state  taxation,  is 
stated  by  the  court  as  follows:     "We  perceive  no  limits  to  the  principle  of 


The  Maixtexaxck  of  Fedee-xl  Scpkemacy.  97 

In  Thomson  v.  Union  Pacific  E.  Co.  the  railroad  company  con- 
cerned, although  performing  federal  services,  was  chartered  by 
the  State.  In  Union  Pacific  it.  1  u.  v.  Peniston,5  the  same 
doctrine  was  applied  to  a  company  chartered  by  Oon- 
gtoflB.  This  fact,  it  was  held,  did  take  the  case  out  of  the 
rule  laid  down  in  earlier  case.  "  We  do  not  perceive,"  the  court 
declared,  u  that  this  presents  any  reason  ior  the  application  of 
a  rule  different  from  that  which  was  applied  in  the  former  case. 
.  .  .  The  United  States  have  no  more  ownership  of  the 
road  authorized  by  Congress  than  they  had  in  the  road  authorized 
by  Kansas."  u  It  is  manifest,"  the  court  continues,  (i  that,  exemp- 
tion of  federal  agencies  from  state  taxation  is  dependent,  not 
upon  the  nature  of  the  agents,  or  upon  the  mode  of  their  constitu- 
tion, or  upon  the  fact  that  they  are  agents,  but  upon  the  effect  of 
the  tax :  that  is,  upon  the  question  whether  the  tax  does  in  truth 
deprive  them  of  power  to  serve  the  government  n  they  were  in- 
tended to  serve  it,  or  does  hinder  the  efficient  exercise  of  their 
power.  A  tax  upon  their  property  has  no  such  necessary  effect. 
It  leaves  them  free  to  discharge  the  duties  they  have  undertaken 
to  perform.  A  tax  upon  their  operations  is  a  direct  obstruction 
to  the  exercise  of  federal  powers." 

In  Owenshoro  National  Bank  v.  City  of  Owenshoro6  it  was  held 
that  the  property  of  national  hanks,  organized  under  a  federal 
statute,  is  absolutely  exempt  from  state  taxation  except  tn  so  far  as 
('(•Tigress  has  oxpros-dy  waiver!  this  immunity.  This  doctrine  would 
be  in  opposition  to  that  declared  in  Union  Pacific  "R.  Co.  v.  Penis- 

CMinption  which  the  complainants  seek  to  establish.  It  would  remove  from 
the  reach  of  state  taxation  all  the  property  of  every  agent  of  the  government. 
y  corporation  engaged  in  the  transportation  of  mails,  or  of  government 
property  of  any  description,  by  land  or  water,  or  in  supplying  materials  for 
the  use  of  the  government,  or  in  performing  any  service  of  whatever  kind. 
Blight  claim  the  benefit  of  the  exemption.  ...  It  may  admit  of  question 
whether  the  whole  income  of  the  property  which  will  remain  liable  to  state 
taxation,  if  the  principle  contended  for  is  admitted  and  applied  in  its  fnllest 
extent,  may  not  ultimately  be  found  inadequate  to  the  support  of  the  state 
governments." 

5  IS  Wall.  5:  21  L.  ed.  7*7. 

6  173  U.  S.  0T>4;  19  Sup.  Ct  Rep.  537;  43  L.  ed.  850. 

7 


98  United  States  Constitutional  Law. 

ton  but  for  the  distinction  between  the  national  banks  as,  in  them- 
selves, governmental  instrumentalities  of  the  United  States,  and 
the  railroads  which  are  primarily  private  enterprises,  but  per- 
forming inter  alia  federal  services.  In  Davis  v.  Bank7  the 
court  had  said :  "  National  Banks  are  instrumentalities  of 
the  Federal  Government,  created  for  a  public  purpose,  and  as 
such  necessarily  subject  to  the  permanent  authority  of  the 
United  States.  It  follows  that  an  attempt  by  a  State  to  define 
their  duties,  or  control  the  conduct  of  their  affairs  is  absolutely 
void,  whenever  such  attempted  exercise  of  authority  expressly 
conflicts  with  the  laws  of  the  United  States,  and  either  frustrates 
the  purpose  of  the  national  legislation  or  impairs  the  efficiency 
of  these  agencies  of  the  Federal  Government  to  discharge  the 
duties  for  the  performance  of  which  they  were  created."  "  It 
follows,  then,  necessarily  from  these  conclusions,"  the  court  say  in 
the  Owensboro  case,  "  that  the  respective  States  would  be  wholly 
without  power  to  levy  any  tax,  either  direct  or  indirect,  upon  the 
national  banks,  their  property,  assets  or  franchises,  were  it  not  for 
the  permissive  legislation  of  Congress." 

In  National  Bank  v.  Commonwealth 8  the  Supreme 
Court  again  resisted  a  claim  attempted  to  be  made  un- 
der the  authority  of  the  doctrine  of  McCulloch  v.  Mary- 
land, that  the  banks  as  governmental  agencies  are  wholly  exempt 
from  the  control  of  state  law  even  with  reference  to  matters  un- 
connected with  the  services  performed  by  them  as  federal  agencies. 
The  court  declared:  "It  certainly  cannot  be  maintained  that 
banks  or  other  corporations  or  instrumentalities  of  the  govern- 
ment are  to  be  wholly  withdrawn  from  the  operation  of  state  legis- 
lation. The  most  important  agents  of  the  Federal  Government 
are  its  officers,  but  no  one  will  contend  that  when  a  man  becomes 
an  officer  of  the  government  he  ceases  to  be  subject  to  the  laws  of 
the  State.  The  principle  we  are  discussing  has  its  limitation,  a 
limitation  growing  out  of  the  necessity  on  which  the  principle 
itself  is  founded.    The  limitation  is,  that  the  agencies  of  the  Fed- 

7  161  TJ.  S.  275;  16  Sup.  Ct.  Rep.  502;  40  L.  ed.  700. 

8  9  Wall.  353;   19  L.  ed.  701. 


The  Maintenance  of  Federal  Supremacy.  90 

eral  Government  are  only  exempted  from  state  legislation,  so  far 
as  the  legislation  may  interfere  with  or  impair  their  efficiency  in 
performing  the  functions  by  which  they  are  designed  to  serve  that 
government.  Any  other  rule  would  controvert  a  principle  founded 
alone  in  the  necessity  of  securing  to  the  government  of  the  United 
States  the  means  of  exercising  its  legitimate  powers,  into  an  un- 
authorized and  unjustifiable  invasion  of  the  rights  of  the  States. 
The  salary  of  a  federal  officer  may  not  be  taxed ;  he  may  be  ex- 
empted from  any  personal  services  which  will  interfere  with  the 
discharge  of  his  official  duties,  because  those  exemptions  are 
essential  to  enable  him  to  perform  those  duties.  But  he  is  subject 
to  all  the  laws  of  the  State  which  affect  his  family,  or  social  rela- 
tions, or  his  property,  and  he  is  liable  to  punishment  for  crime, 
though  that  punishment  be  imprisonment  or  death.  So"  of  the 
[federal]  banks.  They  are  subject  to  the  laws  of  the  State,  and 
are  governed  in  their  daily  course  of  business  far  more  by  the 
laws  of  the  State  than  of  the  Xation.  All  their  contracts  are 
governed  and  construed  by  state  laws.  Their  acquisition  and 
transfer  of  property,  their  right  to  collect  their  debts,  and  their 
liability  to  be  sued  for  debts,  are  all  based  on  state  law.  It  is  only 
when  the  State  incapacitates  the  bank  from  discharging  their 
duties  to  the  government  that  it  becomes  unconstitutional." 

§  47.  State  Taxation  of  Federal  Franchises. 

A  franchise  to  be  or  to  act  as  a  corporation  granted  by  a  State, 
may  be  taxed  by  a  State  as  a  piece  of  intangible  property.  But 
franchises  or  other  rights  derived  from  the  Federal  Government 
may  not  be  taxed  by  the  States  nor  any  hindrances  placed  by  th 
States  upon  their  exercise.  In  California  v.  Central  Pacific  R.  Co.9 
one  of  a  series  of  cases  dealing  with  the  Pacific  Railroads,  the 
court  say:  "  These  franchises  were  granted  to  the  company  for 
national  purposes  and  to  subserve  national  ends.  It  seems  very 
clear  that  the  State  of  California  can  neither  take  them  away,  nor 
destroy,  nor  abridge  them,  nor  cripple  them  by  onerous  burdens. 
.     .     .     Can  it  tax  them  ?    It  may  undoubtedly  tax  outside  visible 

9  127  U.  S.  1 ;  8  Sup.  Ct.  Rep.  1073 ;  32  L.  ed.  150. 


100  Uxtted  States  Constitutional  Law. 

property  of  "the  company  situated  within  the  State.  That  is  a 
different  tiling.  13ut  may  it  tax  franchises  which  are  the  grant  of 
the  United  States  I     In  our  judgment,  it  cannot.'' 

§  48.  State  Taxation  of  Patent  Rights.  0 

In  conformity  with  the  foregoing  doctrine  it  has  been  held  that 
while  the  States  may  tax  the  capital  employed  in  the  manufacture 
of  copyrighted  or  patented  articles,  as  well  as  the  tangible  property 
embodied  in  these  articles,  they  may  not  exact  a  fee  as  a 
condition  precedent  to  the  exercise  of  these  federally  granted 
rights,  nor  can  they  tax  the  intangible  rights  themselves  as 
property.10 

In  Patterson  t,  Kentucky13  the  court  held  that  a  state  statute 
regulating'  the  inspection  and  gauging  of  oils  was  a  mere  police 
regulation  and  did  not  violate  a  patent  right  under  which  a  certain 
oil  was  manufactured.  A  similar  conclusion  was  reached  in*  Web- 
ber v.  Virginia.12  In  Allen  v.  Riley13  was  held  valid  a  state  law 
"which  required  one  selling  a  patent  right  in  any  county  in  the 
■State,  to  file  with  the  clerk  of  such  county  an  authenticated  copy  of 
the  letters  patent,  together  with  an  affidavit  of  the  genuineness  of 
the  letters  patent,  and  that  any  written  obligation  given  for  the 
purchase  "price  of  a  patent  right  should  contain  the  words  u  given 
for  a  patent  right."  These,  it  was  held,  were  proper  police  recpaire- 
ments.  The  court  say:  "We  think  the  State  has  the  power  (cer- 
tainly until  Congress  legislates  upon  the  subject)  with  regard  to 
the  provision  which  shall  accompany  the  sale  or  assignment  of 
rights  arising  under  a  patent,  to  make  reasonable  regulations  con- 
cerning the  subject,  calculated  to  protect  its  citizens  from  fraud. 

-io  Crown  Conk  and  Seal  Co.  v.  Maryland  (87  Md.  687)  ;  People  v.  Assessors 
(156  N.  Y.  417)  ;  People  v.  Roberts  (150  X.  Y.  70).  In  these  cases  it  is  held 
that  if  the  tax  is  upon  the  corporate  property,  or  even  upon  the  shares  of 
stock  evidencing  that  property,  the  value  of  the  patent  rights  must  bo  deducted. 
Xf,  however,  the  tax  be  upon  the  shares  of  stock  to  the  holders,  or  is  upon  the 
franchise  of  the  corporation,  the  fact  that  patent  rights  are  included  within 
the  assets  of  the  company  is  not  material.  Cf.  Judson,  Taxation,  %  33. 
Ufi7  U.  S.  501;  24  L.  ed.  1115. 

12  103  U.  S.  334 :  26  L.  ed.  565. 

13  203  U.  S.  347;  27  Sup.  Ct,  Pep.  95;  51  L.  ed.  216. 


The  Maintenance  of  Fedekal  Supremacy.  101 

.  .  .  The  act  must  be  a  reasonable  and  fair  exercise  of  the 
power  of  the  State  for  the  purpose  of  checking  a  well-known  evil, 
and  to  prevent,  so  far  as  possible,  fraud  and  imposition  in  regard 
to  the  sales  of  rights  under  patents.  Possibly  Congress  might  en- 
act a  statute  which  would  take  away  from  the  States  any  power  to 
legislate  upon  the  subject,  but  it  has  not  as  yet  done  so."  14 

Of  course  no  State  may,  in  the  exercise  of  its  police  or  other 
powers,  in  any  way  discriminate  against  patented  articles.15 

§  49.   State  Taxation  of  Federally  Licensed  Occupations. 

"Where,  by  federal  license,  an  occupation  has  been  authorized 
by  the  Umted^&lates,  enjoyment  and  employment  of  the  license 
may  not  be  restrained  by  a  State.  Thus  in  Moran  v.  Xew  Orleans16 
was  held  void  an  ordinance  of  the  city  of  Xew  Orleans  imposing  a 
license  tax  on  certain  vessels  engaged  in  foreign  commerce  and 
duly  enrolled  and  licensed  under  act  of  Congress.  The  court  say: 
"  The  sole  occupation  sought  to  be  subjected  to  the  tax  is  that  of 
using  and  enjoying  the  license  of  the  United  States  to  employ  these 
particular  vessels  in  the  coasting  trade;  and  the  State  thus  seeks 
to  burden  with  an  exaction,  fixed  at  its  own  pleasure,  the  very 
right  to  which  the  plaintiff  in  error  is  entitled  under  and  which 
he  derives  from  the  constitution  and  laws  of  the  United  S«tates. 
The  Louisiana  statute  declares  expressly  that  if  he  refuses  or 
neglects  to  pay  the  license  tax  imposed  upon  him,  for  using  his 
boat  in  this  way,  he  shall  not  be  permitted  to  act  under  and  avail 
himself  of  the  license  granted  by  the  United  States,  but  may  be 
enjoined  from  so  doing  by  judicial  process.  The  conflict  between 
the  two  authorities  is  direct  and  express.  ...  In  such  an 
opposition,  the  only  question  is  which  is  the  superior  authority; 
and  reduced  to  that  it  furnishes  its  own  answer."' 

In  Ilannan  v.  Chicago17  this  doctrine  is  approved  and  again 
applied. 

n  Justices  White  and  Day  dissented. 

i5  07.an  Lumber  Co.  v.  Union  To.  Nat.  Bank   (145  Fed.  344). 

16  112  U.  S.  60:  8  Sup.  Ut,  Rep.  3S:  28  L.  ed.  653. 

H  147  U.  S.  396;   13  Sup.  Ct.  Rep.  306;  37  L.  ed.  216. 


102  United  States  Constitutional  Law. 

§  50.  State  Taxation  of  Federal  Salaries. 

That  the  salary  or  other  emoluments  of  office  of  federal  officials 
may  not  be  taxed  by  the  States  has  not  been  questioned  since  the 
doctrine  was  first  declared  in  Dobbins  v.  Commissioners.18  "  The 
powers  of  the  National  Government/'  the  court  say,  "  can  only  be 
executed  by  officers  whose  services  must  be  compensated  by  Con- 
gress. The  allowance  is  in  its  discretion.  The  presumption  is 
that  the  compensation  given  by  law  is  no  more  than  the  services 
are  worth,  and  only  such  in  amount  as  will  secure  from  the 
officer  the  diligent  performance  of  his  duties.  .  .  .  The 
compensation  of  an  officer  of  the  United  States  is  fixed  by  a  law 
made  by  Congress.     It  is  in  its  exclusive  discretion  to  determine 

what  shall  be  given Does  not  a  tax,  then,  by  a  State 

upon  the  office,  diminishing  the  recompense,  conflict  with  the  law 
of  the  United  States,  which  secures  it  to  the  officer  in  its  entire- 
ness  ?    It  certainly  has  such  an  effect."  19 

§  51.  State  Taxation  of  Federal  Property. 

The  principle  that  property  belonging  to  the  United  States  is 
not  taxable  by  the  States  in  which  it  is  situated  did  not  receive 
final  judicial  affirmation  until  188o  in  Van  Brocklin  v.  Tennes- 
see.20 Prior  to  this  decision  it  had  quite  generally  been  taken  for 
granted  that  federal  property  was  thus  exempt  from  state  taxation, 
but  in  a  number  of  cases  Congress  would  seem  to  have  implied  that 
it  was  not  confident  upon  this  point  since  it  incorporated  into  en- 
abling acts  for  the  admission  of  territories  into  the  Union  as  States, 
the  requirement  that  after  admission  the  property  of  the  United 

is  16  Pet.  435;  10  L.  ed.  1022. 

19  It  is  probable  that  an  act  of  Congress  imposing  a  tax  upon  salaries  of  the 
president  and  federal  judges  would  be  held  void  as  in  violation  of  the  con- 
stitutional provision  that  the  compensation  of  these  officials  shall  not  be 
diminished  during  the  period  for  which  they  are  elected  or  appointed.  See 
Sen.  Mis.  Doc.,  No.  214,  53rd  Cong.,  2nd  Sess. 

In  W.  U.  Telegraph  Co.  v.  Texas  (105  U.  S.  460;  26  L.  ed.  1067)  the  court 
held  that  a  state  tax  upon  telegraph  messages  could  not  be  collected  upon 
messages  sent  by  officers  of  the  United  States  on  public  business. 

20  117  U.  S.  151;  6  Sup.  Ct.  Rep.  670;  29  L.  ed.  845. 


The  Maintenance  of  Federal  Supremacy.  103 

States  should  be  exempt  from  state  taxation.  The  effect  of  the 
decision  in  Van  Brocklin  v.  Tennessee  was,  of  course,  to  hold 
that  these  provisions  were  declaratory  merely,  and,  therefore, 
superfluous.  The  fact  that  the  lands  concerned  in  this  Tennessee 
case  were  acquired  by  the  United  States  through  sales  for  direct 
taxes  levied  by  act  of  Congress  and  not  expressly  ceded  by  the 
States,  was  held  immaterial. 

In  Wisconsin  C.  R.  Co.  v.  Price  County21  the  doctrine  of  Van 
Brocklin  v.  Tennessee  reappeared  and  was  broadened  so  as  to  in- 
clude taxation  not  only  by  the  State  but  by  any  of  its  administra- 
tive subdivisions.22 

§  52.  State  Taxation  of  Federal  Securities. 

United  States  securities,  it  has  been  held,  may  not  be  taxed 
by  the  States  for  the  reason  that  to  admit  this  power  would  give 
to  the  State  the  authority  to  impair  the  borrowing  power  of  the 
Xational  Government.  This  was  early  decided  in  Weston  v. 
Charleston.23  "  The  tax  on  government  stock,"  said  Marshall, 
who  rendered  the  opinion  in  the  case,  "  is  thought  by  this  court  to 
be  a  tax  on  the  contract,  a  tax  on  the  power  to  borrow  money  on 
the  credit  of  the  United  States,  and  consequently  to  be  repugnant 
to  the  Constitution." 

Distinguishing  such  a  state  tax  from  one  on  land  after  it  has 
been  sold  by  the  Federal  Government — a  tax  which  it  was  con- 
ceded the  States  might  lay  —  Marshall  said :     a  The  lands  pur- 

21  133  U.  S.  406;   10  Sup.  Ct.  Rep.  341:  33  L.  ed.  687. 

22 "  It  is  familiar  law  that  a  State  has  no  power  to  tax  property  of  the 
United  States  within  its  limits.  This  exemption  of  their  property  from  state 
taxation  —  and  hy  state  taxation  we  mean  any  taxation  by  authority  of  the 
State,  whether  it  be  strictly  for  state  purposes  or  for  more  local  and  special 
objects  —  is  founded  upon  that  principle  which  inheres  in  every  independent 
government,  that  it  must  be  free  from  any  such  interference  of  another  govern- 
ment as  may  tend  to  destroy  its  powers  or  impair  their  efficiency." 

As  to  the  inability  of  the  States  to  tax  lands  allotted  in  severalty  to  the 
Indians  under  the  act  of  1881,  the  improvements  on  them  and  the  cattle  or 
other  property  furnished  the  allottees,  see  chapter  XX  of  this  work,  and 
especially  the  case  of  U.  S.  v.  Reckert  (188  U.  S.  432;  23  Sup.  Ct.  Rep.  478; 
47  L.  ed.  USE). 

23  2  Pet.  449;  7  L.  ed.  481. 


10-i  United  States  Coxstitutioxal  Law. 

chased  become  a  part  of  the  mass  of  property  in  the  country  with 
no  implied  exemption  from  common  burdens.  AIL  lands  are  de- 
rived from  the  general  or  particular  government  and  all  lands 
are  subject  to  taxation.  Lands  sold  are  in  the  condition  of  money 
borrowed  and  repaid.  Its  liability  to  taxation  in  any  form  it  may 
then  assume  is  not  questioned.  The  connection  between  the  bor- 
rower and  the  lender  is  dissolved.  It  is  no  burden  on  loans,  and 
it  is  no  impediment  to  the  power  of  borrowing  that  the  rnoney, 
when  repaid,  loses  its  exemption  from  taxation.  But  a  tax  upon 
debts  due  from  the  government,  stands-,  we  think,  on  very  different 
principles  from  a  tax  on  lands  which  the  government  has  sold.'' 

In  Banks  v.  The  Mayor24  the  attempt  to  make  a  distinction  be- 
tween the  bonds  of  the  government  issued  for  loans  of  money  and 
certificates  of  indebtedness  given  in  payment  for  supplies  pur- 
chased, and  to  hold  the  latter  subject  to  taxation  by  the  States, 
was  defeated  bv  the  court.  So  also  in  Bank  v.  Supervisors25 
United  States  notes  issued  under  the  acts  of  18G2  and  1863  were 
held  exempt  from  state  taxation. 

In  Bank  of  Commerce  v..  Commissioners20  stock  of  the  L'nited 
States  constituting  a  part  or  the  whole  of  the  capital  stock  of  a 
state  bank  was  held  not  subject  to  state  taxation,  the  fact  that  the 
tax  was  on  the  aggregate  of  the  taxpayer's  property  and  not  upon 
the  stock  by  name  being  held  immaterial.  So  aLso  in  the  Bank 
Tax  Case2'  a  state  tax  on  a  valuation  equal  to  the  amount  of  the 
capital  stock  paid  in,  and  surplus,  of  a  state  bank  was  held  to  be 
a  tax  on  the  property  of  the  institution  and,  therefore,  invalid,  in 
so  far  as  that  property  consisted  of  stocks  of  the  United  States. 

In  Home  Savings  Bank  v.  Des  Moines28  it  was  held  that  a  state 
statute  directing  that  shares  of  stock  of  state  banks  should  be 
assessed  to  such  banks,  and  not  to  individual  shareholders,  operated 
as  a  tax  on  the  property  of  the  bank  and,  therefore,  in  so  far  as 

2*7  Wall.  16;   19  L.  ed.  57. 

25  7  Wall.  26;  19  L.  ed.  60. 

26  2  Black.  020;   17  L.  ed.  451. 

27  2  Wall.  200;   17  L.  ed.  703. 

28  205  U.  S.  503;  27  Sup.  Ct.  Rep.  571;  51  L.  ed.  901. 


Tile  M  ill  Willi!  lii»  II  of  Federal  Supremacy.  105 

such   property   represented    federal    securities,    violated   the   im- 
munity of  such  securities  from  state  taxation.23 

-?  In  its  opinion  the  court  say:  "We  must  inquire  whether  the  law  really 
imposes  a  tax  upon  the  shares  of  stoek  as-  the  property  of  their  owners,  or 
merely  ad  pi-  the  value  of  tiiose  shares  as  the  measure  of  valuation  of  the 
property  of  the  corporation,  and  by  that  standard  taxes  that  property  itself. 
The  result  of  this  inquiry  i3  of  vital  importance,  because  there  may  be  a  tax 
upon  the  shares  ei  a  corporation,  which  are  property  distinct  from  that  owned 
by  the  corporation,  and  with  a  different  owner,  without  an  allowance  of  the 
exemption  due  to  the  property  of  the  corporation  itself,  while,  if  the  tax  is 
up"ii  the  corporation'-;  property,  all  exemptions  due  it  must  be  allowed." 

After  reviewing  Bank  of  Commerce  v.  Commissioners  (2  Black.  620;  17 
L.  ed.  4.11  i  and  Bank  Tax  Case  (2  Wall.  200;  17  L.  ed.  7!»3)  the  opinion  con- 
tinue-: "The  case  at  bar  cannot  be  distinguished  in  principle  from  these 
-.  In  the  first  case  the  tax  was  on  the  capital  stock  at  its  actual  value; 
in  the  second  case  on  the  amount  of  the  capital  stock  and  the  surplus  earn- 
ings; and.  in  the  case  at  bar,  on  the  shares  of  the  stock,  taking  into  account 
the  capital,  surplus,  and  undivided  earnings.  It  would  be  difficult  for  the 
most  ingenious  mind  and  the  most  accomplished  pen  to  state  any  distinction 
between  these  three  laws,  except  by  the  manner  by  which  they  all  sought  the 
same  end. —  the  taxation  of  the  property  of  the  bank.  The  slight  concealment 
■forded  by  the  emission  of  the  property  eo  nomine  is  not  sufficient  to  disguise 
the  fact  that,  in  effect,  it  is  the  property  which  is  taxed.  If,  included  in  that 
;tv  it  is  discovered  that  there  is  some  which  is  entitled  by  federal  right 
to  an  immunity,  it  is  the  duty  of  this  court  to  see  that  the  immunity  is 
respected." 

Of  the  line  of  cases  affirming  the  doctrine  of  Van  Allen  v.  Assessors  (3  Wall. 
."73:  IS  L.  ed".  22!t  i .  the  opinion  declares:  "There  is  nothing  in  them  which 
just i lies  the  tax  under  consideration  here,  levied,  as  has  been  shown,  on  the 
rate  property.  Without  further  review  of  the  authorities  it  is  safe  to  say 
that  the  distinction  established  In  the  Van  Allen  case  has  always  been 
observed  by  this  court,  ami  that,  although  taxes  by  States  have  been  permitted 
which  might  indirectly  affect  United  States  securities,  they  have  never  been 
permitted  in  any  ca  where  the  taxation  has  been  levied  upon  property 

which  i-  entirely  distinct  and  independent  from  these  securities.  On  the  other 
hand,  whenever,  as  in  these  cases,  the  tax  has  been  upon  the  property  of  the 
corporation  so  far  as  that  property  has  consisted  of  such  securities,  it  has 
Been  held  void.  ...  It  is  said  that  where  a  tax  is  h-vie  I  upon  a  corporation. 
uied  by  the  value  of  the  shares  in  it.  it  is  equivalent  in  its  effect  to  a  tax 
(clearly  valid  I  upon  the  shareholders  in  respect  of  their  shares,  because,  being 
paid  by  the  bank,  the  burden  falls  eventually  upon  the  shareholders  in  pro- 
poition  to  their  holdings.  It  was  upon  this  view  that  the  lower  court  rested 
it<  opinion.  But  the  two  kinds  of  taxes  are  not  equivalent  in  law.  because  the 
State  has  the  power  to  levy  one.  and  has  not  the  power  to  levy  the  other. 
The  question  hero  is  one  of  power,  and  not  of  economics.  If  the  State  has  not 
the  power  to  levy  this  tax.  we  will  not  inquire  whether  another  tax,  which  it 


106  United  States  Constitutional  Law. 

"Where,  however,  the  state  tax  may  properly  be  held  to  be  a 
franchise  tax  upon  the  state  institution,  it  has  been  held  valid 
notwithstanding  the  fact  that  United  States  stocks  constitute  a 
part  of  the  assets  of  the  institution.  "  Nothing  is  more  certain 
in  legal  discussion,"  the  court  say  in  Society  for  Savings  v. 
Coite,30  "  that  the  privileges  and  franchises  of  a  private  corpora- 
tion, all  trades  and  avocations  by  which  the  citizens  acquire 
a  livelihood,  may  be  taxed  by  a  State  for  the  support  of 
the  state  government.  Authority  to  that  effect  resides  in 
the  State  wholly  independent  of  the  Federal  Government,  and  is 
wholly  unaffected  by  the  fact  that  the  corporation  or  individual 
has  or  has  not  made  investment  in  federal  securities."  31  So  also 
in  Home  Insurance  Co.  v.  New  York  32  it  was  held  that  a  state 
statute  imposing  a  tax  upon  the  (<  corporate  franchise  or  business  " 
of  a  company,  and  making  reference  to  its  capital  stock  and  divi- 
dends only  for  the  purpose  of  determining  the  amount  of  the  tax, 
was  not  invalid  as  levying  a  tax  on  the  capital  stock  or  property 
of  the  company,  but  upon  its  corporate  franchise,  and,  therefore, 
not  subject  to  the  objection  that  it  imposed  a  tax  on  United  States 
securities  constituting  a  portion  of  the  investments  of  the  com- 
pany. A  tax  levied  upon  shares  of  stock  in  the  hands  of  their 
holders  it  has  been  uniformly  held  is  not  equivalent  to  a  tax  upon 
of  the  company,  but  upon  its  corporate  franchise,  and,  therefore, 
it  has  been  consistently  held  that  the  States  may  tax  the  shares 
of  a  national  bank  in  the  hands  of  the  shareholders,  or,  similarly, 
the  stock  of  corporations  whose  investments  consist  wholly  or  in 
part  of  federal  securities.33 

might  lawfully  impose,  would  have  the  same  ultimate  incidence.  Precisely  the 
same  argument  was  made  and  rejected  in  Owensboro  Nat.  Bank  v.  Owens- 
boro." 

30  6  Wall,  611;   18  L.  ed.  907. 

31  Citing  Osborn  v.  Bank  of  U.  S.    (9  Wh.  738;  6  L.  ed.  204). 

32  134  U.  S.  594;    10  Sup.  Ct.  Rep.   593 ;   33  L.  ed.   1025. 

33 Van  Allen  v.  Assessors  (3  Wall.  573;  18  L.  ed.  229);  Provident  Institu- 
tion v.  Massachusetts  (6  Wall.  611;  18  L.  ed.  907);  Palmer  v.  McMahon 
(133  U.  S.  660;   10  Sup.  Ct.  Pep.  324;  33  L.  ed.  772.) 


The  Maintenance  of  Federal  Supremacy.  107 

§  53.  Income  from  Federal  Securities  Exempt  from  State  Taxa- 
tion. 

Incomes  derived  from  interest  on  federal  securities,  are  exempt 
from  state  taxation.34  This  was  held  with  reference  to  the  exemp- 
tion from  federal  taxation  of  incomes  derived  from  state  securi- 
ties, and  the  same  reasoning  would  of  course  exclude  from  state 
taxation  incomes  derived  from  federalsecuritieBj*'* 

§  54.  State  Taxation  of  Circulating  Notes  of  National  Banks. 

Congress,  by  an  act  approved  August  13,  1894,  has  provided  that 
**  circulating  notes  of  national  banking  associations  and  United 
States  legal  tender  notes,  and  other  notes  and  certificates  of  the 
United  States,  payable  on  demand,  and  circulating  or  intended 
to  circulate,  as  currency  .  .  .  shall  be  subject  to  [state]  taxa- 
tion as  money  on  hand  or  on  deposit."  In  Hibernia  Savings  and 
Loan  Society  v.  San  Francisco30  the  Supreme  Court  held  that  not- 
withstanding the  act  of  Congress  of  1862 37  declaring  that 
u  all  stocks,  bonds,  treasury  notes,  and  other  obligations  of  the 
United  States  shall  be  exempt  from  taxation  by  or  under  state  or 
municipal  or  local  authority,'*  certain  United  States  treasury 
checks  for  interest  accrued  upon  registered  bonds  of  the  United 
States,  where  intended  for  immediate  payment  of  interest,  might 
be  taxed  by  a  State  in  the  hands  of  the  owner.  "  Had  the  govern- 
ment [of  the  United  'States],"  said  the  court,  "  in  the  absence  of 
money  for  the  immediate  payment  of  interest  upon  its  bonds, 
issued  new  obligations  for  the  payment  of  this  interest  at  a  future 
day.  it  might  well  be  claimed  that  these  were  not  taxable,  as  the 
taxation  of  such  notes  would,  to  the  extent  of  the  tax,  impair 
their  value  and  negotiability  in  the  hands  of  the  holder.  .  .  . 
But  where  the  checks  are  issued  payable  immediately,  they  merely 
stand   in   the  place  of  coin,  which  may  be  immediately  drawn 

34  Bank  of  Kentucky  v.   Com.    (4  Bush.  48). 

35  Pollock  v.  Farmers'  Loan  and  Trust  Co.  (157  U.  S.  429;  15  Sup.  Ct.  Rep. 
673;  39  L.  ed.  759). 

36  200  U.  S.  310;  26  Sup.  Ct.  Rep.  265;  50  L.  ed.  495. 

37  Rer.  Stat.,  §  3701. 


108  United  States  Constitutional  Law. 

thereon-  .  .  .  While  the  checks  are  obligations  of  the  United 
States,  and  within  the  letter  of  Sec.  3701,  they  are  not  within 
its  spirit,  and  are  proper  subjects  of  taxation." 

§  55.  State  Taxation  of  Bequests  to  the  United  States. 

Bequests  to  the  United  States  may  be  subjected  to  state  in- 
heritance taxes,  such  taxes,  the  courts,  both  state  and  federal, 
holding  to  be  not  upon  the  property  bequeathed,  but  upon  its 
transmission  by  will  or  by  descent.  "  The  legacy  becomes  the 
property  of  the  United  States  only  after  it  has  suffered  a  diminu- 
tion to  the  amount  of  the  tax,  and  it  is  only  upon  this  condition 
that  the  state  legislature  assents  to  a  bequest  of  it."  38 

Further,  in  Plumber  v.  Coler39  it  was  held  that  the  state  in- 
heritance tax  might  be  collected  upon  a  bequest  consisting  of 
United  States  bonds  issued  under  an  act  of  Congress  specifically 
declaring  them  to  be  exempt  from  state  taxation  in  any  form. 
After  an  exhaustive  renew  of  authorities  the  court  say :  "  We 
think  the  conclusion  fairly  to  be  drawn  from  the  federal  cases  is 
that  the  right  to  take  property  by  will  or  by  descent  is  derived 
from  and  regulated  by  municipal  law;  that,  in  assessing  a  tax 
upon  such  right  or  privilege,  the  State  may  lawfully  measure  or 
fix  the  amount  of  the  tax  by  referring  to  the  value  of  the  property 
passing,  and  that  the  incidental  fact  that  such  property  is  com- 
posed, in  whole  or  in  part,  of  federal  securities,  does  not  invali- 
date the  tax  or  the  law  under  which  it  is  imposed."  Tn  Murtfock 
v.  Ward  ^  it  was  held  that  a  similar  bequest  of  federal  securities 
was  not  exempt  from  the  inheritance  tax  imposed  by  the  War 
Revenue  act  of  Congress  of  1893. 

§  56.  State  Taxation  of  National  Banks. 

By  act  of  June  3,  1864,  certain  powers  of  taxation  with  refer- 
ence to  national  banks  were  given  by  Congress  to  the  States.  This 
permission  now  constituting  Section  5210  of  the  Revised  Statutes 

ss  United  States  v.  Perkins  (163  TJ.  S.  625 ;  M  Sup.  Ct.  Rep.  1073;  41  L.  ed. 
2S7). 

39  178  IT.  S.  115  ;  20  Snp.  Ct.  Eep.  929;  44  L.  ed.  099. 
«  178  U.  S.  139 ;  20  Sup.  Ct.  Rep.  776 ;  44  L.  ed.  1000. 


The  ATaixtkxaxce  of  J-'kukkal  Si  i'kemacy.  109 

is  as  follows:  '' Xothing  herein  shall  prevent  all  the  shares  in 
any  association  from  being  included  in  the  valuation  of  the  per- 
sonal property  of  the  owner  or  holder  of  such  shares,  in  assessing 
taxes  imposed  by  authority  of  the  State  in  which  the  association 
is  located;  but  the  legislature  of  each  State  may  determine  and 
direct  the  manner  and  place  of  taxing  all  shares  of  national  bank- 
ing associations  located  within  the  State,  subject  to  only  the  two 
restrictions,  that  the  taxation  shall  not  be  at  a  greater  rate  than 
is  assessed  upon  other  moneyed  capital  in  the  hands  of  individual 
citizens  of  such  State,  and  that  the  shares  of  any  national  banking- 
association  owned  by  nonresidents  of  any  State,  shall  be  taxed  in 
the  city  or  town  where  the  bank  is  located,  and  not  elsewhere. 
Xothing  herein  shall  be  construed  to  exempt  the  real  property  of 
associations  from  either  state,  county,  or  municipal  taxes  to  the 
same  extent,  according  to  its  value,  as  other  real  property  is 
taxed." 

Aa  has  been  already  pointed  out  this  permission  measures  the 
entire  extent  of  the  State's  power  of  taxation  with  reference  to 
the  national  banks.  This  federrl  act  has  been  construed  to  oper- 
ate not  as  a  grant  by  the  United  States  to  the  States  of  a  power 
not  previously  possessed,  but  as  the  removal  by  Congress  of  a 
hindrance  to  the  exercise  by  the  States  of  a  powTer  inherent  in 
them.  In  Van  Allen  v.  Assessors41  the  court  say :  "  It 
is  said  that  Congress  possesses  no  power  to  confer  upon 
a  State  authority  to  he  exercised  which  has  been  ex- 
clusively delegated  to  that  "body  by  the  Constitution  and,  conse- 
quently, that  it  cannot  confer  upon  the  State  the  sovereign  right 
of  taxation ;  nor  is  the  State  competent  to  receive  a  grant  of  any 
such  power  from  Congress.  "We  agree  to  this.  But  as  it  respects 
a  subject-matter  over  which  Congress  and  the  States  may  exercise 
a  concurrent  power,  hut  from  the  exercise  of  which  Congress,  "by 
reason  of  its  paramount  authority,  may  exclude  the  States,  there 
is  no  doubt  Congress  may  withhold  the  exercise  of  that  authority 
and  leave  the  States  free  to  act.  .  .  .  The  power  of  taxation 
under  the  Constitution  as  a  general  rule,  and  as  has  been  repcat- 

«  3  Wall.  573;   18  L.  ed.  229. 


110  United  States  Constitutional  Law. 

edly  recognized  in  adjudged  cases  in  this  court,  is  a  concurrent 
power.  The  qualifications  of  the  rule  are  the  exclusion  of  the 
States  from  the  taxation  of  the  means  and  instruments  employed 
in  the  exercise  of  the  functions  of  the  Federal  Government.''  ^ 

In  Van  Allen  v.  Assessors,43  as  previously  stated,  the  court  held 
that  the  congressional  permission  to  the  States  to  tax  the  shares 
of  national  banks  in  the  hands  of  the  shareholders  was  not  de- 
feated by  the  fact  that  such  banks  have  their  capital  wholly  or  in 
part  invested  in  federal  securities. 

The  power  of  the  States  under  Section  5219  to  tax  property 
and  the  shares  of  stock  of  national  banks  of  their  holders,  does 
not  carry  with  it  the  authority  to  levy  a  tax  that  will  in  any  wise 
operate  as  a  tax  on  the  franchise  of  the  banks,  that  is,  their  right 
to  be  and  to  do  business  within  the  State. 

In  Owensboro  National  Bank  v.  Owensboro44  the  only  question 
held  by  the  court  to  be  open  to  argument  was  as  to  whether  in  fact 
the  State  tax  involved  operated  as  a  tax  on  the  franchise  of  the 
bank.  That  it  would  be  void  if  it  did  so  operate  the  court  held  not 
open  to  doubt.  In  this  case,  the  tax,  while  not  a  tax  on  the  fran- 
chise in  a  technical  sense,  was  held  to  be  not  upon  the  shares  of 
stock  in  the  names  of  the  shareholders,  but  upon  all  the  intangible 
property  of  the  bank  and,  therefore,  void. 

§  57.  Federal  Taxation  of  State  Agencies. 

Correlative  to  the  implied  limitation  upon  the  States  with  re- 
spect to  interference  with  federal  agencies  of  government,  is  the 
implied  obligation  upon  the  Federal  Government  not  to  interfere 
with  the  operation  of  the  governmental  agencies  of  the  States. 
This  limitation  upon  the  Federal  Government  is  not,  however,  so 
strictly  construed  as  that  laid  upon  the  States.  Here,  as  in  every 
other  case,  where  a  conflict  arises  between  the  exercise  of  federal 

«  Compare  In  re  Rahrer  (140  U.  S.  545;  11  Sup.  Ct.  Rep.  865;  35  L.  ed. 
572)  in  which  was  sustained  the  power  of  Congress  to  permit  a  State  to  extend 
police  jurisdiction  over  imported  liquors  upon  their  arrival  within  the  State. 

«3  Wall.  573;  18  L.  ed.  229. 

"173  U.  S.  664;  19  Sup.  Ct.  Rep.  537;  43  L.  ed.  850. 


The  Maixtexaxce  of  Federal  Supremacy.  Ill 

powers,  and  of  state  powers,  the  State  must  yield,  although,  except 
for  this  opposition,  it  would  be  within  its  constitutional  rights. 
Thus  franchises  granted  to  interstate  railway  companies  by  the 
United  States  are  not  taxable  by  the  States.45  But  in  Veazie  Bank 
v.  Fenno46  the  Federal  Government,  in  the  exercise  of  its  constitu- 
tional powers  to  control  the  currency,  was  permitted  to  tax  out  of 
existence  the  issue  of  state  banks,  although  it  was  not  denied  that 
the  States  had  the  constitutional  power  to  charter  such  hanks.47 

In  this  Veazie  Bank  case  it  was  argued  on  behalf  of  the  State 
that  the  federal  tax  in  question  was,  in  effect,  a  tax  on  a  fran- 
chise granted  by  the  State,  and  as  such  unconstitutional.  The 
court  held  that,  in  fact,  the  tax  was  not  upon  the  franchise  of  the 
bank,  but  declared,  obiter.  "  We  do  not  say  that  there  may  not 
be  such  a  tax.  It  may  be  admitted  that  the  reserved  rights  of  the 
States,  such  as  the  right  to  pass  laws,  to  give  effect  to  laws  through 
executive  action,  to  administer  justice  through  the  courts,  and  to 
employ  all  necessary  agencies  for  legitimate  purposes  of  state 
government,  are  not  proper  subjects  of  the  taxing  power  of  Con- 
gress. But  it  cannot  be  admitted  that  franchises  granted  by  a 
State  are  necessarily  exempt  from  taxation;  for  franchises  are 
property,  often  very  valuable  and  productive  property,  and  when 
not  conferred  for  the  purpose  of  giving  effect  to  some  reserved 
power  of  a  State,  seems  to  be  as  properly  objects  of  taxation  as 
any  other  property." 

Similarly  in  Ex  parte  Rapier48  it  was  held  that  the  fact  that  a 
lottery  company  was  chartered  by  a  State  did  not  prevent  the 
Federal  Government  from  excluding  its  tickets  from  the  mails. 

The  Supreme  Court  has  not,  however,  permitted  this  principle 
of  the  supremacy  of  the  Federal  Government  to  authorize  the 
Kational  Government,  by  taxation  or  otherwise,  to  interfere  with 
the  States  in  the  exercise  of  their  governmental  rights,  except  in 
as  far  as  such  interference  is  necessary  to  the  exercise  of  a  fed- 

«  Calif  v.  Pacific  R.  R.  Co.   (127  U.  S.  1 ;  8  Sup.  Ct.  Rep.  1073;  32  L.  ed. 
150). 
«8  Wall.  533;   19  L.  ed.  482. 

♦7  Briscoe  v.  Bank  of  Kentucky   (11  Pet.  257;  9  L.  ed.  709). 
«  143  U.  S.  110;  12  Sup.  Ct.  Rep.  374;  36  L.  ed.  93. 


112  Fxitjed  States  Constitutional  Law. 

eral  power.  In  Lane  County  v.  Oregon40  it  was  held  that  the 
Federal  Government  was  without  the  power  to  compel  the  States 
to  receive  in  payment  of  their  taxes  paper  currency  that  had  been 
declared  legal  tender  by  the  Federal  Government.  In  its  opinion 
the  court  say:  "The  people  of  the  Fnited  States  constitute 
one  nation,  under  one  government,  and  this  government  within 
the  scope  of  the  powers  with  which  it  is  invested,  is  supreme. 
On  the  other  .hand  the  people  of  each  State  compose  a  State. 
having  its  own  government,  and  endowed  with  all  the  function-; 
essential  to  separate  and  independent  existence.  The  States  dis- 
united might  continue  to  exist.  Without  the  States  in  union 
there  could  be  no  such  political  body  as  the  Fnited  States. 
.  .  .  Xow,  to  the  existence  of  the  States,  themselves,  necessary 
to  the  existence  of  the  Fnited  States,  the  power  of  taxation  is  in- 
dispensable. It  is  an  essential  function  of  the  government. 
.  .  .  In  respect,  however,  to  property,  business  and  persons, 
within  their  respective  limits  their  power  of  taxation  remained 
and  remains  entire.  It  is,  indeed,  a  concurrent  power,  and  in  the 
case  of  a  tax  on  the  same  subject  by  both  governments,  the  claim 
of  the  Fnited  States,  as  the  supreme  authority,  must  be  preferred ; 
but,  with  this  qualification  it  is  absolute.  The  extent  to  which  it 
shall  be  exercised,  the  subjects  upon  which  it  shall  be  exercised, 
and  the  mode  in  which  it  shall  be  exercised,  are  equally  within 
the  discretion  of  the  legislatures  to  which  the  States  commit  the 
exercise  of  the  power.  That  discretion  is  restrained  only  by  the 
will  of  the  people  expressed  in  the  state  Constitutions  or  through 
elections,  and  by  the  condition  that  it  must  not  be  so  used  as  to 
burden  or  embarrass  the  operations  of  the  Xational  Government. 
There  is  nothing  in  the  Constitution  which  contemplates  or  au- 
thorizes any  direct  abridgement  of  this  power  by  national  legisla- 
tion. To  the  extent  just  indicated  it  is  as  complete  in  the  States 
as  the  like  power,  within  the  limits  of  the  Constitution,  is  com- 
plete in  Congress.  If,  therefore,  the  condition  of  any  State,  in 
the  judgment  of  its  legislature,  requires  the  collection  of  taxes  in 
kind,  that  is  to 'say,  by  the  delivery  to  the  proper  onicers  of  a 

<9  7  Wall.  71 ;  19  L.  ed.  101. 


The  Maixthxaxce  of  Federal  Supremacy.  113 

certain  proportion  of  products,  or  in  gold  or  silver  bullion,  or  in 
gold  and  silver  coin,  it  is  not  easy  to  see  upon  what  principle  the 
Xational  Legislature  can  interfere  with  the  exercise,  to  that  end, 
of  this  power,  original  in  the  States,  and  never  as  yet  surrendered. 
If  this  be  so,  it  is,  certainly,  a  reasonable  conclusion  that  Con- 
gress did  not  intend,  by  the  general  terms  of  the  Currency  Act, 
to  restrain  the  exercise  of  this  power  in  the  manner  shown  by  the 
Statutes  of  Oregon." 

In  the  case  of  Collector  v.  Day50  it  held  that  the  Federal  Gov- 
ernment could  not  levy  an  income  tax  upon  the  salaries  of  state 


officials.  TnT^hat  case"TEeeourt  said :  If  the  means  and  in- 
strumentalities employed  by  that  [the  General]  Government  to 
carry  into  operation  the  powers  granted  to  it,  are,  necessarily, 
and,  for  the  sake  of  self-preservation,  exempt  from  taxation  by 
the  States,  why  are  not  those  of  the  States  depending  upon 
their  reserved  powers,  for  like  reasons,  equally  exempt  from 
federal  taxation  ?  Their  unimpaired  existence  in  the  one 
case  is  as  essential  as  in  the  other.  It  is  admitted  that  there 
is  no  express  provision  in  the  Constitution  that  prohibits  the  Gen- 
eral Government  from  taxing  the  means  and  instrumentalities  of 
the  States,  nor  is  there  any  prohibiting  the  States  from  taxing  the 
means  and  instrumentalities  of  that  government.  In  both  cases 
the  exemption  rests  upon  necessary  implication,  and  is  upheld  by 
the  great  law  of  self-preservation, —  as  any  government,  whose 
means  employed  in  conducting  its  operations,  if  subject  to  the  con- 
trol of  another  and  distinct  government,  can  only  exist  at  the 
mercy  of  that  government.  Of  what  avail  are  these  means  if 
another  power  may  tax  them  at  discretion?" 

Thus,  the  court  goes  on  to  point  out  that  the  alleged  federal 
right  that  was  involved,  so  far  from  being  similar  to  that  sus- 
tained in  Veazie  Bank  v.  Fenno,  was  included  within  that  sphere 
of  state  interest  which  the  court  in  that  case  expressly  declared 
to  be  beyond  the  taxing  power  of  the  Federal  Government. 

50  11  Wall.  113;  20  L.  ed.  122. 

8 


114  United  States  Constitutional  Law. 

§  58.  Federal  Taxation  of  Property  of  Municipalities. 

In  United  States  v.  B.  &  0.  By.51  it  was  held  that  the  United 
States  could  not  collect  a  tax  on  money  due  a  municipality  of 
one  of  the  States,  the  court  saying:  "A  municipal  corporation 
like  the  City  of  Baltimore,  is  a  representative  not  only  of  the 
State,  but  is  a  portion  of  its  governmental  power.  It  is  one  of 
its  creatures,  made  for  a  specific  purpose,  to  exercise  within  a 
limited  sphere  the  powers  of  the  State.  The  State  may  withdraw 
these  local  powers  of  government  at  pleasure,  and  may,  through 
its  legislature  or  other  appointed  channels,  govern  the  local  terri- 
tory as  it  governs  the  State  at  large.  It  may  enlarge  or  contract 
its  powers  or  destroy  its  existence.  As  a  portion  of  the  State  in 
the  exercise  of  a  limited  portion  of  the  powers  of  the  State,  its 
revenues,  like  those  of  the  State,  are  not  subject  to  taxation."  52 

In  Mercantile  Nat.  Bank  v.  New  York53  it  was  decided  that 
the  United  States  might  not  tax  bonds  issued  by  a  State  or  one 
of  its  municipal  bodies,  under  its  authority,  and  held  by  private 
corporations. 

In  the  Income  Tax  case54  it  was  held  that  a  federal  tax  might 
not  be  levied  on  income  derived  from  municipal  bonds. 

In  Ambrosini  v.  United  States55  the  court  held  that  bonds 
given  to  secure  the  proper  enforcement  of  state  laws  in  respect 
to  the  sale  of  intoxicating  liquors,  were  not  subject  to  fed- 
eral taxation. 

§  59.  South  Carolina  v.  United  States. 

An  interesting  case  of  recent  date  bearing  upon  the  right  of  the 
Federal  Government,  by  taxation  or  otherwise,  to  interfere  with 

61  17  Wall.  322;  21  L.  ed.  597. 

62  In  this  case  two  justices  dissented  on  the  ground  that,  conceding  that 
the  instruments  for  conducting  the  public  affairs  of  the  municipality  are 
entitled  to  the  same  exemption  from  federal  taxation  as  those  of  the  State 
at  large,  it  did  not  follow  that  property  possessed  and  used  merely  in  a 
commercial  way  for  income  or  profits  was  thus  exempt. 

6*121  U.  S.  138;  7  Sup.  Ct.  Rep.  826;  30  L.  ed.  895. 

54  Pollock  v.  Farmers'  Loan  &  Trust  Co.  (157  U.  S.  429;  15  Sup.  Ct.  Rep. 
C73;  39  L.  ed.  759). 

63  187  U.  S.  1;  23  Sup.  Ot.  Rep.  1;  47  L.  ed.  49. 


The  Maintenance  of  Federal  Supremacy.  115 

state  governmental  operations  is  that  of  the  State  of  South  Caro- 
lina v.  United  States,56  decided  in  1905.  In  this  case  was  ques- 
tioned the  right  of  the  Federal  Government  to  levy  internal 
revenue  taxes  upon  intoxicating  liquors  sold  under  the  state  dis- 
pensary system  of  South  Carolina. 

By  several  statutes  the  State  had  assumed  the  direct  control  of 
the  wholesale  and  retail  sale  of  intoxicating  liquors  within  its 
limits,  had  established  dispensaries,  and  appointed  dispensers 
therein.  The  dispensers  received  fixed  salaries,  and  had  there- 
fore no  pecuniary  interest  in  the  sales,  the  entire  profits  there- 
from being  appropriated  by  the  State,  one-half  being  divided 
equally  between  the  municipality  and  the  county  in  which  the 
dispensaries  were  located,  and  the  other  half  paid  into  the  state 
treasury.  In  previous  cases  the  Supreme  Court  of  the  United 
States  had  held  that  the  regulation  and  control  of  the  sale  of  in- 
toxicating liquors,  so  far  as  interstate  commerce  was  not  inter- 
fered with,  was  within  the  legitimate  police  power  of  the  States, 
and,  indeed,  by  express  congressional  statute  the  States  had  been 
permitted  to  control  the  sale  of  imported  liquors  after  their  ar- 
rival within  the  States.  The  question  thus  was :  had  the  Federal 
GovernmenlHIif?  constitutional  power  to  exact  taxes  from  officials 
appointed  and  paid  by  the  State  of  South  Carolina  and  perform- 
ing functions  which  the  State  was  .constitutionally  empowered  to 
intrust  -to  them  ?  The  Supreme  Court  held  that,  in  this  particu- 
lar case,  it  had.  "With  reference  to  the  argument  that  was  made 
by  South  Carolina  that  for  Congress  to  tax  the  agents  of  the  State 
charged  with  the  duty  of  selling  intoxicating  liquors,  was  to  inter- 
fere with  the  State's  legitimate  police  power,  the  court  said:  "We 
are  not  insensible  to  the  force  of  this  argument,  and  appreciate  the 
difficulties  which  it  presents,  but  let  us  see  to  what  it  leads.  Each 
State  is  subject  only  to  the  limitations  prescribed  by  the  Constitu- 
tion, and  within  its  territory  is  otherwise  supreme.  Its  internal 
affairs  are  matters  of  its  own  discretion.  The  Constitution  pro- 
vides that '  the  United  States  shall  guarantee  to  every  State  in  this 
Union  a  republican  form  of  Government.'57     That  expresses  the 

m  190  U.  S.  437;  26  Sup.  Ct.  Rep.  110;  50  L.  ed.  2G1. 
67  Art.  IV,   §  4. 


116  United  States  Constitutional  Law. 

full  limit  of  national  control  over  the  internal  affairs  of  a  State. 
The  rights  of  South  Carolina  to  control  the  sale  of  liquor  by  the 
dispensary  system  has  been  sustained.58  The  profits  from  the 
business  in  the  year  1906,  as  appears  from  the  findings  of  fact, 
were  over  a  half  a  million  dollars.  Mingling  the  thought  of  profit 
with  the  necessity  of  regulation  may  induce  the  State  to  take 
possession,  in  like  manner,  of  tobacco,  oleomargarine,  and  all 
other  objects  of  internal  revenue  taxation.  If  one  State  finds  it 
thus  profitable,  other  States  may  follow,  and  the  whole  body  of 
internal  revenue  tax  be  thus  stricken  down." 

The  Supreme  Court  was  not  content  to  rest  its  judgment  upon 
a  premised  possibility  of  serious  interference  with  the  revenues 
of  the  National  Government  should  the  State  be  permitted,  bv 
assuming  control  of  an  enterprise,  to  withdraw  it  from  federal 
taxation.  Two  additional  reasons  were  given  why  the  tax  in 
question  should  be  held  valid.  In  the  first  place  the  court  note 
the  fact  that  the  tax  "  is  not  imposed  on  any  property  belonging 
to  the  State,  but  is  a  charge  on  a  business  before  any  profits  are 
realized  therefrom."  It  is  thus,  the  court  say,  similar  to  a  suc- 
cession tax  which  has  been  construed  to  be  a  tax  levied  upon  and 
deducted  from  property  before  the  person  to  whom  it  is  be- 
queathed obtains  a  title  thereto.  The  second  additional  reason 
given  by  the  Supreme  Court  for  holding  constitutional  the  fed- 
eral income  tax  upon  the  South  Carolina  dispensaries  is  that  it 
is  not  a  tax  upon  the  means  of  instrumentalities  employed  by 
the  State  in  discharge  of  its  ordinary  functions  of  government. 
Upon  this  point  the  court  adverts  to  the  fact  that  in  the  cases  in 
which  a  federal  tax  upon  state  agencies  had  been  held  unconsti- 
tutional, it  had  been  levied  upon  instrumentalities  of  government. 
After  a  review  of  the  cases,  the  court  say:  "  These  decisions, 
while  not  controlling  the  question  before  us,  indicate  that  the 
thought  has  been  that  the  exemption  of  state  agencies  and  instru- 
mentalities from  national  taxation  is  limited  to  those  which  are 
of  a  strictly  governmental  character,  and  does  not  extend  to  those 

58  Vance  v.  Vandercook  Co.  (170  U.  S.  43S;  18  Sup.  Ct.  Rep.  674;  42  L.  ed. 
1100). 


The  Maintenance  of  Fedekal  Supeemacy.  117 

■which  are  used  by  the  State  m  the  carrying  011  of  an  ordinary 
private  business."09 

In  conformity  with  the  doctrine  that  state  inheritance  taxes 
may  be  levied  and  collected  upon  bequests  or  estates  consisting 
of  federal  securities,  it  has  been  held  that  state  securities  are 
similarly  subject  to  inheritance  taxes  federally  imposed. 

59  In  support  of  this  distinction  between  the  ordinary  functions  of  govern- 
ment, and  the  control  of  private  enterprises  by  the  State,  the  court  refers 
to  the  well-established  distinctions  between  the  duties  of  a  public  character 
east  upon  municipal  corporations,  and  those  which  relate  to  what  may  be 
considered  their  private  business,  and  the  resulting  different  responsibilities  in 
ca;es  of  negligence  in  respect  to  the  discharge  of  those  duties,  respectively. 
(Oliver  v.  Worcester,  102  Mass.  4S9;  Lloyd  v.  New  York,  5  X.  Y.  369;  Western 
Saw  Fund  Society  v.  Philadelphia,  31  Pa.  175.)  In  the  last  case  it  was  held 
that  a  city  supplying  gas  to  the  inhabitants  acts  as  a  private  corporation, 
and  is  subject  to  the  same  liabilities  and  disabilities.  In  its  opinion  the 
Supreme  Court  declare:  "Such  contracts  are  not  made  by  the  municipal 
corporation  by  virtue  of  its  powers  of  local  sovereignty,  but  in  its  capacity 
of  a  private  corporation.  The  supply  of  gaslight  is  no  more  a  duty  of 
sovereignty  than  the  supply  of  water.  Both  these  objects  may  be  accomplished 
through  the  agency  of  individuals  or  private  corporations,  and  in  very  many 
instances  they  are  accomplished  by  those  means.  If  this  power  is  granted 
to  a  borough  or  a  city,  it  is  a  special  private  franchise,  made  as  well  for  the 
private  emolument  and  advantage  of  the  city  as  for  the  public  good.  The 
whole  investment  is  the  private  property  of  the  city,  as  much  so  as  the 
lands  and  houses  belonging  to  it.  Blending  the  two  powers  in  one  grant  does 
not  destroy  the  clear  and  well-settled  distinction,  and  the  process  of  separa- 
tion is  not  rendered  impossible  by  the  confusion.  In  separating  them,  regard 
must  be  had  to  the  object  of  the  legislature  in  conferring  them.  If  granted 
for  public  purposes  exclusively,  they  belong  to  the  corporate  body  in  its  public, 
political  or  municipal  character.  But  if  the  grant  was  for  the  purpose  of 
private  advantage  and  emolument,  though  the  public  may  derive  a  common 
benefit  therefrom,  the  corporation  quoad  hoc  is  to  be  regarded  as  a  private 
company.  It  stands  on  the  same  footing  as  would  any  individual  or  body 
of  persons  upon  whom  the  like  special  franchises  had  been  conferred." 
Concluding  its  opinion,  the  Supreme  Court  of  the  United  States  say:  "Now, 
if  it  be  well-established,  a3  these  authorities  say,  that  there  is  a  clear  dis- 
tinction as  respects  responsibility  for  negligence  between  the  powers  granted 
to  a  corporation  for  governmental  purposes  and  those  in  aid  of  private 
business,  a  like  distinction  may  be  recognized  when  we  are  asked  to  limit 
the  full  power  of  imposing  excises  granted  to  the  National  Government  by 
an  implied  inability  to  impede  or  embarrass  a  State  in  the  discharge  of  its 
functions.  It  is  reasonable  to  hold  that,  while  the  former  may  do  nothing 
by  taxation  in  any  form  to  prevent  the  full  discharge  by  the  latter  of  its 
governmental  functions,  yet,  whenever  a  State  engages  in  a  business  which  is 


118  United  States  Constitutional  Law. 

§  60.  Federal  Taxation  of  State  Documents. 

In  a  number  of  cases  in  the  State  courts,  interesting  points 
have  been  raised  and  decided  with  reference  to  the  obligation 
imposed  by  federal  laws  to  affix  stamps  to  certain  documents. 
There  is  little  doubt  that  the  United  States  may  in  its  own  courts, 
or  in  other  ways  refuse  to  recognize  the  validity  of  unstamped 
documents,  but  it  would  seem  that  it  may  not  dictate  to  state 
agencies  what  instruments  they  shall  accept  as  valid  and  enforce- 
able. Though  Congress  may  provide  that  certain  instruments 
shall  be  stamped  and  that  if  not  so  stamped  they  shall  not  be 
received  as  evidence  in  federal  courts,  the  State  cannot  be  com- 
pelled to  exclude  them  as  evidence  in  its  courts  upon  that  ground. 


of  a  private  nature,  that  business  is  not  withdrawn  from  the  taxing  power 
of  the  nation." 

Three  justices  dissented  from  the  judgment  rendered  in  South  Carolina  v. 
United  States.  After  a  review  of  authorities,  which  in  their  judgment  did 
not  warrant  the  position  assumed  by  the  majority  in  the  case  on  trial,  these 
justices  say,  in  answer  to  the  contention  that  if  the  instrumentalities  of  the 
State  in  the  control  of  the  liquor  trade  be  declared  exempt  from  federal 
taxation,  the  way  is  opened  to  the  States  seriously  to  interfere  with  federal 
revenues  by  extending  their  operations  in  other  similar  directions:  "But 
these  extreme  illustrations  amount  simply  to  saying  that  it  is  possible 
for  the  imagination  to  foreshadow  conditions  which,  did  they  arise,  would 
impair  the  government  created  by  the  Constitution,  and,  because  such  con- 
jectures may  be  indulged  in,  the  limitations  created  by  the  Constitution 
for  the  purpose  of  preserving  both  the  state  and  national  governments  are  to 
be  disregarded.  In  other  words,  that  the  government  created  by  the  Constitu- 
tion must  now  be  destroyed,  because  it  is  possible  to  suggest  conditions 
which,  if  they  arise,  would,  in  future,  produce  a  like  result.  But  the  weak- 
ness of  the  illustrations  as  applied  to  this  case  is  apparent.  They  have  no 
relation  to  this  case,  since  it  is  not  denied  that,  as  to  liquor,  the  State  has 
absolute  power,  andr  may  prohibit  the  sale  of  all  liquor,  and  thus  prevent 
the  United  States  from  deriving  revenue  from  that  source.  Again,  therefore, 
when  the  true  relation  of  the  argument,  to  the  case  in  hand  is  seen,  it 
reduces  itself  to  a  complete  contradiction,  viz.,  a  State  may,  by  prohibition, 
prevent  the  United  States  from  reaping  revenue  from  the  liquor  traffic,  but 
any  other  state  regulation  by  which  such  result  is  accomplished  may  be 
prevented  by  the  United  States,  because  thereby  the  State  has  done  indirectly 
only  that  which  the  State  had  the  lawful  power  directly  to  do." 

As  to  the  point  that  the  -State  of  South  Carolina  was  deriving  a  revenue 
from  the  conduct  of  the  liquor  business,  the  dissenting  justices  point  to 
the  fact  that  in  previous  cases  it  had  been  expressly  settled  that  the  law 
establishing  the  State  dispensaries  had  not  been  passed  as  a  revenue,  but  as 
a  purely  police  measure. 


The  Maintenance  of  Federal  Supremacy.  119 

It  has  also  been  held  by  state  courts  that  the  United  States  may 
not  impose  a  stamp  tax  upon  judicial  processes  of  state  courts, 
or  forbid  the  recording  of  unstamped  mortgages,  or  tax  the  official 
bonds  of  state  officers.00 

§  61.  Federal  Exercise  of  Eminent  Domain  in  the  States. 

The  relation  of  the  federal  power  to  state  governmental  instru- 
mentalities lias  been  further  illustrated  in  the  matter  of  the  Fed- 
eral Government's  right  of  eminent  domain,  it  having  beeu  held 
that  the  General  Government  has  an  implied  right  of  eminent 
domain  which  it  may  exercise  within  a  State  with  or  without  that 
State's  consent.01  Though  never  authoritatively  decided  the  bet- 
ter opinion  is,  however,  that  the  United  States  may  not  take  for 
its  own  use  land  or  other  property  essential  to  the  State  in  per- 
formance of  its  governmental  functions. 

The  subject  will  receive  fuller  treatment  in  its  appropriate 
place.02 

eo  Jones  v.  Keep  (19  Wis.  376);  Fifield  v.  Close  (15  Mich.  605);  Tucker 
v.  Potter  (35  Conn.  46);  Moore  v.  Quirk  (105  Mass.  49);  Sayles  v.  Davis 
(22  Wis.  225)  ;  Davis  v.  Richardson  (45  Miss.  503)  ;  Garland  v.  Gaines  (73 
Conn.  602)  ;  52  L.  R.  A.  915.     Cf.  Judson,  On  Taxation.  §  501. 

61  Monongahela  Navigation  Co.  v.  U.  S.  (148  U.  S.  312;  13  Sup.  Ct.  Rep. 
622;  37  L.  ed.  463)  ;  Chappell  v.  U.  S.  (160  U.  S.  499;  16  Sup.  Ct.  Rep.  397; 
40  L.  ed.  510). 

62  McClain,  Constitutional  Laic  in  the  United  States,  p.  Ill,  says:  "As 
between  the  Federal  Government  and  a  state  government,  neither  one  can 
authorize  the  condemnation  for  public  use  of  land  which  has  already  been 
acquired  either  by  condemnation  or  purchase  by  the  other  for  public  use." 
He  cites,  however,  no  authority,  and,  moreover,  adds:  "Possibly  the  United 
States  Government  could  not,  by  any  action  of  the  State,  be  excluded  from 
appropriating  state  property  for  federal  purposes,  but  such  questions  are 
not  likely  to  arise,  for  it  is  hardly  conceivable  that  the  Federal  Government 
should  find  it  expedient  and  necessary  to  interfere  with  any  State  in  the 
enjoyment  and  discharge  of  its  public  rights  and  duties." 


CHAPTER  VI. 

THE  MAINTENANCE  OF  FEDERAL  SUPREMACY  BY  WRITS  OF  ERROR 
FROM  THE  FEDERAL  SUPREME  COURT  TO  STATE  COURTS. 

§  62.  Writs  of  Error  to  State  Courts. 

A  corollary  that  follows  from  the  supremacy  of  federal  law  is 
that  when  a  federal  right,  privilege  or  immunity  is  set  up  as  a 
defense  or  authority  for  an  act,  opportunity  shall  exist  for  a  final 
determination  of  this  point  in  the  federal  courts.  As  has  been 
earlier  pointed  out,  the  original  Judiciary  Act,  passed  in  the  first 
year  of  the  Constitution,  in  its  famous  twenty-fifth  section,  pro- 
vided that  a  final  judgment  or  decree  in  any  suit,  in  the  highest 
court  of  law  or  equity  of  a  State  in  which  a  decision  of  the  suit 
could  be  had,  "  where  is  drawn  in  question  the  validity  of  a  treaty 
or  statute  of,  or  an  authority  exercised  under  the  United  States, 
and  the  decision  is  against  their  validity,  or  where  is  drawn  in 
question  the  validity  of  a  statute  of,  or  an  authority  exercised 
under  any  State,  on  the  ground  of  their  being  repugnant  to  the 
Constitution,  treaties  or  laws  of  the  United  States,  and  the  de- 
cision is  in  favor  of  such  their  validity,  or  where  is  drawn  in 
question  the  construction  of  any  clause  of  the  Constitution,  or  of 
a  treaty,  or  statute  of,  or  commission  held  under  the  United 
States,  and  the  decision  is  against  the  title,  right,  privilege  or 
exemption  specially  set  up  or  claimed  by  either  party,  under  such 
clause  of  the  said  Constitution,  treaty,  statute  or  commission  may 
be  re-examined  and  reversed  or  affirmed  in  the  Supreme  Court  of 
the  United  States  upon  writ  of  error."  In  order  that  this  appel- 
late jurisdiction  may  be  effectual  this  section  also  provides  that 
instead  of  remanding  the  cause  to  the  state  court  for  a  final  de- 
cision therein,  the  Supreme  Court  may  at  their  discretion,  if  the 
cause  has  been  once  before  remanded,  proceed  to  a  final  disposi- 
tion of  the  same  and  award  execution. 

These  provisions  have  remained  substantially  unchanged  since 
their  enactment  to  the  present  day. 

[120] 


Federal  Supremacy  by  Wbits  of  Ekrok.  121 

It  will  be  observed  that  provision  for  writ  of  error  from  the 
federal  Supreme  Court  is  made  only  for  those  cases  in  which  the 
judgment  in  the  state  tribunals  is  adverse  to  the  alleged  federal 
right,  privilege  or  immunity.  Where  the  state  decision  is  favor- 
able there  is,  of  course,  no  need,  based  upon  the  principle  of  fed- 
eral supremacy,  for  a  federal  review. 

§  63.  Martin  v.  Hunter's  Lessee. 

The  constitutionality  of  this  section  of  the  Judiciary  Act  was 
affirmed  by  the  Supreme  Court  in  1816  in  Martin  v.  Hunter's 
Lessee.1  This  was  a  writ  of  error  to  the  Court  of  Appeals  of  the 
State  of  Virginia,  founded  upon  a  refusal  of  that  court  to  obey 
a  mandate  of  the  federal  Supreme  Court,  the  state  court,  in  its 
judgment,  saying:  "The  court  is  unanimously  of  opinion  that 
the  appellate  power  of  the  Supreme  Court  of  the  United  States 
does  not  extend  to  this  court  under  a  sound  construction  of  the 
Constitution  of  the  United  States;  that  so  much  of  the  twenty- 
fifth  section  of  the  Act  of  Congress,  to  establish  the  judicial 
courts  of  the  United  States,  as  extends  the  appellate  jurisdiction 
of  the  Supreme  Court  to  this  court,  is  not  in  performance  of  the 
Constitution  of  the  United  States.  That  the  writ  of  error  in  this 
case  was  improvidently  allowed  under  the  authority  of  that  act; 
that  the  proceedings  thereon  in  the  Supreme  Court  were  coram 
non  judice  in  relation  to  this  court,  and  that  obedience  to  its  man- 
date be  declined  by  the  court." 

This  position  of  the  state  court,  the  federal  court,  in  one  of 
the  weightiest  of  its  decisions,  declared  to  be  erroneous,  the  argu- 
ment being  that,  though  not  granted  in  express  terms,  the  very 
nature  of  the  federal  authority  provided  for  by  the  Constitu- 
tion makes  this  appellate  power  a  necessary  part  of  the  general 
judicial  power  granted  to  the  National  Government. 

§  64.  Cohens  v.  Virginia. 

The  appellate  power  of  the  federal  Supreme  Court  under  the 
j  twenty-fifth  section  of  the  Judiciary  Act  was  again  contested  in 

1 1  Wh.  304 ;  4  L.  ed.  97. 


122  United  States  Constitutional  Law. 

Cohens  v.  Virginia,2  decided  in  1821,  Chief  Justice  Marshall  ren- 
dering the  opinion  of  the  court.  This  was  a  criminal  case  and 
the  first  point  made  was  that  a  case  in  which  a  State  appeared 
as  defendant  in  error  was  a  suit  against  a  State  and  as  such  for- 
bidden by  the  Eleventh  Amendment.  The  court  held,  however, 
that  this  Amendment  has  reference  only  to  the  suits  in  law  or 
equity  commenced  or  prosecuted  against  one  of  the  United  States 
by  citizens  of  another  State,  and  not  to  suits  originally  begun  by 
a  State.  "  It  is,  then,  the  opinion  of  the  court,"  declared  Mar- 
shall, "  that  the  defendant  who  removes  a  judgment  rendered 
against  him  by  a  state  court  into  this  court,  for  the  purpose  of 
re-examining  the  question  whether  that  judgment  be  in  violation 
d£  the  Constitution  or  laws  of  the  United  States,  does  not  com- 
mence or  prosecute  a  suit  against  the  State." 

Secondly,  the  State  renewed  its  claim  that  in  no  case  might 
the  appellate  jurisdiction  of  the  Supreme  Court  be  constitu- 
tionally exercised  over  the  judgment  of  a  state  court.  To  this 
Marshall  replied  that  the  nature  of  the  Federal  Union  provided 
by  the  Constitution  and  intended  by  its  framers  and  adopters, 
required  the  exercise  of  the  power.  "  We  think,"  he  declared, 
"  that  in  a  government  acknowledgedly  supreme,  with  respect  to 
objects  of  vital  interest  to  the  Nation,  there  is  nothing  incon- 
sistent with  sound  reason,  nothing  incompatible  with  the  nature 
of  government,  in  making  all  its  departments  supreme,  so  far 
as  respects  those  objects,  and  so  far  as  is  necessary  to  their  attain- 
ment. The  exercise  of  the  appellate  power  over  those  judgments 
of  the  state  tribunals  which  may  contravene  the  Constitution  or 
laws  of  the  United  States,  is,  we  believe,  essential  to  the  attain- 
ment of  those  objects." 

To  the  contention  made  by  the  State  that  to  grant  the  appellate 
jurisdiction  in  question  would  be  to  render  possible  a  complete 
consolidation  of  federal  and  state  judicial  power,  Marshall  replied : 
"A  complete  consolidation  of  the  States  so  far  as  respects  the 
judicial  p#wer  would  authorize  the  legislature  to  confer  on  the 
federal  courts  appellate  jurisdiction  from  the  state  courts  in  all 

2  6  Wh.  264;  5  L.  ed.  257. 


Federal  Supremacy  by  Writs  of  Error.  123 

cases  whatsoever.  The  distinction  between  such  a  power,  and 
that  of  giving  appellate  jurisdiction  in  a  few  special  cases,  in  the 
decision  of  which  the  Xation  takes  an  interest,  is  too  obvious  not 
to  be  perceived  by  all." 

Since  Cohens  v.  Virginia,  the  constitutional  power  of  the 
federal  Supreme  Court  to  revise  by  writ  of  error  decisions  of 
state  courts  coming  within  the  provisions  of  the  twenty-fifth  sec- 
tion of  the  Judiciary  Act  has  been  but  once  seriously  questioned, 
and  then  under  the  strong  stimulus  of  objection  to  the  Fugitive 
Slave  Law  of  1850.3 

3Ableman  v.  Booth  (21  How.  506;  16  L.  ed.  169).     See  ante,  p.  84. 


CHAPTEK  VII. 

THE  MAINTENANCE  OF  FEDERAL  SUPREMACY  BY  THE  REMOVAL 
OF  SUITS  FROM  STATE  TO  FEDERAL  COURTS. 

§  65.  Right  of  Removal. 

A  corollary  which  necessarily  follows  from  the  doctrine  of 
federal  supremacy  is  that  no  State  can  declare  criminal  and 
punish  as  such  acts  authorized  by  federal  law.  Since  the  Civil 
War  this  has  not  been  directly  denied  by  the  States,  but  it  has 
been  strenuously  asserted  by  them  that  when  an  offense  has 
been  committed  against  their  own  peace,  and  the  one  committing 
it  has  been  apprehended  and  brought  to  trial  before  their  own 
courts,  he  is  not  entitled  to  have  his  case  removed  at  once  to  the 
federal  courts  simply  by  setting  up  as  a  defense  that  his  act  was 
done  in  pursuance  of  an  authority  delegated  him  by  the  General 
Government  The  right  to  set  up  this  defense  has  not  been 
denied  by  the  States,  nor  have  they  claimed  that,  should  the  deci- 
sion of  their  courts  be  adverse  to  him  upon  this  point,  he  may  not 
take  an  appeal  from  their  highest  tribunals  to  the  Supreme  Court 
of  the  United  States.  But  they  have  asserted  that  when  an  act 
has  been  committed  which  is  criminal  by  their  laws,  it  is,  pri- 
marily, an  offense  against  their  peace,  and  as  such  cognizable  only 
in  their  own  courts,  and,  therefore,  that  though,  as  has  been  just 
said,  a  right  of  appeal  from  their  highest  courts  to  the  United 
States  Supreme  Court  upon  the  questions  of  federal  authority 
must  be  allowed,  the  trial  of  the  offense  may  not,  as  a  matter  of 
right,  be  removed  by  the  accused  from  the  state  court  in  which 
it  is  begun  to  one  of  the  lower  federal  courts. 

These  lower  federal  courts,  as  is  well  known,  possess  only  those 
powers  which  have  been  granted  to  them  by  act  of  Congress.  By 
the  original  Judiciary  Act1  Congress  did  not,  as  it  might  have, 
endow  these  tribunals  with  a  general  jurisdiction  in  proceedings 

1  1  Stat,  at  L.  73. 

[124] 


Federal  Supremacy  ry  Kemoval  of  Suits.  125 

against  federal  officers  based  upon  their  official  acts.  By  the 
famous  Sme  Act  of  1833,  however,  an  act  passed  at  the  time  of 
South  Carolina's  attempted  nullification  of  the  United  States 
taritf  law,  it  was  provided  that  "  when  any  civil  suit  or  criminal 
prosecution  is  commenced  in  any  court  of  a  State  against  any 
officer  appointed  under,  or  acting  by  authority  of,  any  revenue 
law  of  the  United  States,  now  or  hereafter  enacted,  or  against 
any  person  acting  by  or  under  authority  of  any  such  officer,  or 
on  account  of  any  act  done  under  color  of  his  office,"  the  case,  at 
the  defendant's  instance,  might  be  at  once  removed  from  the  state 
to  the  federal  courts  for  trial. 

§  66.  Tennessee  v.  Davis. 

This  act  has  been  from  time  to  time  amended,  and  now  forms 
§  643  of  the  Revised  Statutes.  Its  constitutionality  was  first 
judicially  examined  by  the  Supreme  Court  in  Tennessee  v.  Davis.2 
In  this  case  Davis,  a  federal  revenue  officer,  killed  a  man,  was 
arrested  therefor,  and,  when  brought  to  trial,  applied  for  removal 
to  a  federal  court  under  this  act.  The  State  of  Tennessee  denied 
the  constitutionality  of  this  grant  of  right  upon  the  ground  that 
the  act  for  which  Davis  was  being  tried  was  a  violation  of  state 
and  not  of  federal  law.  This  the  federal  authorities  admitted, 
but  asserted  that,  inasmuch  as  the  defendant  was  a  federal  official, 
and  claimed  to  have  committed  the  homicide  while  in  pursuance 
of  his  duties  as  such,  the  federal  courts  had  the  right  to  assume 
jurisdiction  of  the  case  in  order  that  the  independence  and 
supremacy  of  federal  authority  might  be  maintained. 

Justice  Strong,  in  rendering-  the  opinion  of  the  United  States 
Supreme  Court  upon  this  point,  prefaced  his  discussion  by  say- 
ing: "A  more  important  question  can  hardly  be  imagined.  Upon 
its  answer  may  depend  the  possibility  of  the  General  Govern- 
ment's preserving  its  own  existence.  As  was  said  in  Martin  v. 
Hunter's  Lessee,3  '  the  General  Government  must  cease  to  exist 
whenever  it  loses  the  power  of  protecting  itself  in  the  exercise 
of  its  constitutional  powers.'     It  can  only  act  through  its  officers 

2  100  r.  R.  2o7:  25  L.  eel.  64S. 

3  1  Wli.  HO-l :  -1  L.  od.  U7. 


126  United  States  Constitutional  Law. 

and  agents,  and  they  must  act  within  the  States.  If,  when  thus 
acting,  and  within  the  scope  of  their  authority,  those  officers  can 
be  arrested  and  brought  to  trial  in  a  state  court,  for  an  alleged 
offense  against  the  law  of  the  State,  yet  warranted  by  the  federal 
authority  they  possess,  and  if  the  General  Government  is  power- 
less to  interfere  at  once  for  their  protection  —  if  their  protection 
must  be  left  to  the  action  of  the  state  courts  —  the  operations 
of  the  General  Government  may  at  any  time  be  arrested  at  the 
will  of  one  of  its  members.  The  legislature  of  a  State  may  be 
unfriendly.  It  may  affix  penalties  to  acts  done  under  the  imme- 
diate direction  of  the  National  Government,  and  in  obedience  to 
the  laws.  It  may  deny  the  authority  conferred  by  those  laws. 
The  state  court  may  administer  not  only  the  laws  of  the  State, 
but  equally  the  federal  law,  in  such  a  manner  as  to  paralyze  the 
operations  of  the  government.  And  even  if,  after  trial  and  final 
judgment  in  the  state  court,  the  case  can  be  brought  into  the 
United  States  court  for  review,  the  officer  is  withdrawn  from  the 
discharge  of  his  duty  during  the  pendency  of  the  prosecution,  and 
the  exercise  of  acknowledged  federal  authority  arrested.  We  do 
not  think  such  an  element  of  weakness  is  to  be  found  in  the  Con- 
stitution. The  United  States  is  a  government  with  authority 
extending  over  the  whole  territory  of  the  Union,  acting  upon  the 
States  and  the  people  of  the  States.  While  it  is  limited  in  the 
number  of  its  powers,  so  far  as  its  authority  extends,  it  is  su- 
preme. Ko  state  government  can  exclude  it  from  the  exercise  of 
any  authority  conferred  upon  it  by  the  Constitution,  obstruct 
its  authorized  officers  against  its  will,  or  withhold  from  it,  for 
a  moment,  the  cognizance  of  any  subject  which  that  instrument 
has  committed  to  it.  .  .  .  The  constitutional  right  of  Con- 
gress to  authorize  the  removal  before  trial  of  civil  cases  arising 
under  the  laws  of  the  United  States  has  long  since  passed  beyond 
doubt.  It  was  exercised  almost  contemporaneously  with  the 
adoption  of  the  Constitution,  and  the  power  has  been  in  constant 
use  ever  since.  ...  If  there  is  power  in  Congress  to  direct 
removal  before  trial  of  a  civil  case  arising  under  the  Constitu- 
tion or  laws  of  the  United  States,  and  direct  its  removal  because 


Federal  Supremacy  by  Removal  of  Suits.  127 

such  a  case  has  arisen,  it  is  impossible  to  see  why  the  same  power 
may  not  order  the  removal  of  a  criminal  prosecution,  when  a 
similar  case  has  arisen  under  it.  The  judicial  power  is  declared 
to  extend  to  all  cases  of  the  character  described,  making  no  dis- 
tinction between  civil  and  criminal,  and  the  reasons  for  con- 
ferring upon  the  courts  of  the  National  Government  superior 
jurisdiction  over  cases  involving  authority  and  rights  under  the 
laws  of  the  United  States,  are  equally' applicable  to  both.  .  .  . 
Such  a  jurisdiction  is  necessary  for  the  preservation  of  the 
acknowledged  powers  of  the  government.  It  is  essential,  also, 
to  an  uniform  and  consistent  administration  of  national  laws. 
.  .  .  It  is  true,  the  [Judiciary]  Act  of  1789  authorized  the 
removal  of  civil  cases  only.  It  did  not  attempt  to  confer  upon 
the  federal  courts  all  the  judicial  power  vested  in  the  government 
Additional  grants  have  been  made  from  time  to  time."  4 

*  As  to  the  point  raised  by  the  State  that  the  act  of  1833  provided  no 
specific  mode  of  procedure,  Justice  Strong  said:  "The  Circuit  Courts  of  the 
United  States  have  all  the  appliances  that  are  needed  for  the  trial  of  any 
criminal  cases.  They  adopt  and  apply  the  laws  of  the  State  in  civil  cases, 
and  there  is  no  more  difficulty  in  administering  the  State's  criminal  law. 
They  are  not  foreign  courts.  The  Constitution  had  made  them  courts  within 
the  States  to  administer  the  laws  of  the  States  in  certain  cases;  and,  so  long 
as  they  keep  within  the  jurisdiction  assigned  to  them,  their  general  powers 
are  adequate  to  the  trial  of  any  case.  The  supposed  anomaly  of  prosecuting 
offenders  against  the  peace  and  dignity  of  a  State,  in  tribunals  of  the  General 
Government,  grows  entirely  out  of  the  division  of  powers  between  that  Gov- 
ernment and  the  government  of  a  State;  that  is,  a  division  of  sovereignty  over 
certain  matters.  When  this  is  understood,  and  it  is  time  that  it  should  be, 
it  will  not  appear  strange  that  even  in  cases  of  criminal  prosecutions  for 
alleged  offenses  against  a  State  in  which  arises  a  defense  under  United  States 
law,  the  General  Government  should  take  cognizance  of  the  case  and  try  it  in 
its  own  courts,  according  to  its  own  form  of  proceeding." 

In  this  case  Justices  Clifford  and  Field  dissented,  their  dissent  being  based 
upon  the  argument  that,  granting  (which  they  did  not  admit),  that  Congress 
ma}  pass  such  laws  as  it  deems  necessary  for  the  protection  of  its  agents, 
and  may  for  that  purpose  define  the  acts  that  shall  be  considered  crimes,  and 
give  to  the  inferior  federal  courts  jurisdiction  to  try  those  charged  with  com- 
mitting them,  it  had  not  in  fact  done  so.  The  act  of  1833  had,  indeed,  pro- 
vided for  the  removal  from  state  to  federal  courts  cf  criminal  suits  against 
officers  acting  under  authority  of  any  federal  revenue  law  growing  out  of  acts 
committed  by  them  under  such  authority,  but,  said  the  dissentient  Justices, 


128  United  States  Constitutional  Law. 

It  is  seen  that  Section  643  gives  the  power  of  removal  only 
with  reference  to  suits  against  revenue  officers  of  the  Federal 
Government.  Section  641  provides  that  "  when  any  civil  suit  or 
criminal  prosecution  is  commenced  in  any  State  Court  for  any 
cause  whatsoever  against  any  person  who  is  denied  or  cannot  en- 
force in  the  judicial  tribunals  of  the  State  or  in  the  part  of  the 
State  where  such  suit  or  prosecution  is  pending  any  right  secured 
by  him  by  any  law  providing  for  the  equal  civil  rights  of  citizens 
of  the  United  States,  or  of  all  persons  within  the  jurisdiction  of 

there  was  upon  the  federal  statute  books  no  laws  specifically  defining  as  a 
crime  the  act  with  which  Davis  was  charged  and  affixing  an  appropriate 
penalty  therefor.  Therefore,  they  held,  no  federal  law  having  been  violated, 
the  federal  circuit  court  could  not  take  or  be  given  jurisdiction  of  the  case. 
''Criminal  jurisdiction  is  not  by  the  Constitution  conferred  upon  any  cenrt." 
they  declared,  "  and  it  is  settled  law  that  Congress  must  in  all  cases,  make 
any  act  criminal  and  define  the  offense  before  either  the  District  or  Circuit 
Courts  can  take  cognizance  of  an  individual  charging  the  act  as  an  offense 
against  the  authority  of  the  United  States.  .  .  .  Courts  of  the  United  States 
derive  no  jurisdiction  in  criminal  cases  from  the  common  law,  nor  can  sucli 
tribunals  take  cognizance  of  am>-  act  of  an  individual  as  a  public  offense,  or 
declare  it  punishable  as  such,  until  it  has  been  defined  as  an  offense  by  an 
Act  of  Congress  passed  in  pursuance  of  the  Constitution."  But,  continued  the 
Justices,  not  only  has  Congress  not  legislated  so  as  to  give  the  necessary 
jurisdiction  in  the  case  in  question,  but  it  could  not  constitutionally  do  so. 
"Acts  of  Congress,"  they  said,  "cannot  properly  supersede  the  police  powers 
of  the  State.  ...  If  the  police  law  of  the  States  does  not  deprive  anyone  of 
that  which  is  justly  and  properly  his  own,  it  is  obvious  that  its  posses>i<>n 
by  the  State  and  its  exercise  for  the  regulation  of  the  actions  of  the  citizens 
can  never  constitute  an  invasion  of  the  national  sovereignty  or  afford  a  basis 
for  an  appeal  to  the  protection  of  the  national  authorities.  In  other  words  no 
case  either  in  law  or  equity,  under  the  federal  Constitution  or  laws  or  treaties 
of  the  United  States,  over  which  the  federal  judicial  power  is  constitutionally 
extended  (Art.  Ill,  §  2)  thereby  arises."  "  Offices  may  be  created,"  they  con- 
tinue, "  by  a  law  of  Congress,  and  officers  to  execute  the  same  may  be 
appointed  in  the  manner  specified  in  the  Constitution;  and  it  is  not  doubted 
that  Congress  may  pass  laws  for  their  protection,  and  for  that  purpose  may 
define  the  offense  of  killing  such  an  officer  when  in  discharge  of  his  duties. 
.  .  .  But  the  principal  question  in  this  case  is  of  a  very  different  character, 
as  the  indictment  is  against  the  officer  of  the  revenue  for  murdering  a  citizen 
of  the  State  having  in  no  way  any  official  connection  with  the  collection  of 
the  public  revenue.  Neither  the  Constitution  nor  the  Acts  of  Congress  give  a 
revenue  officer  or  any  other  officer  of  the  United  States  an  immunity  to  com- 
mit murder  in  a  State,  or  prohibit  the  State  from  executing  its  laws  for  the 
punishment  of  the  offender." 


Fedebal  Supbbmact  by  Removal  of  Suits.  129 

the  United  States  or  against  any  officer,  civil  or  military,  or  other 
person  for  any  arrest  or  imprisonment  or  other  trespasses  or 
wrongs  made  or  committed  by  virtue  of,  or  under  color  of,  au- 
thority derived  from  any  law  providing  for  equal  rights,  as  afore- 
said, or  refusing  to  do  any  act  on  the  ground  that  it  would  be 
inconsistent  with  such  law,  such  suit  or  prosecution  may  upon 
the  petition  of  such  defendant  filed  in  said  State  Court  at  any 
time  before  the  trial  or  final  hearing  of  the  cause,  stating  the 
facts  and  verified  by  oath,  be  removed  for  trial  into  the  next 
Circuit  Court  to  l>e  held  in  the  district  where  it  is  pending."  The 
constitutionality  of  this  section  has  been  affirmed/'  As  to  all  federal 
officials  other  than  revenue  officers,  federal  protection  against  state 
action,  when  necessary,  must  be  sought  in  cases  not  covered  by 
Section  641,  either  by  way  of  writ  of  error  from  the  highest  state 
court  to  the  Supreme  Court  of  the  United  States,  or,  if  that  be 
inadequate,  by  writ  of  habeas  corpus.0 

§  67.  Right  of  Removal  in  Civil  Cases. 

The  right  to  remove  civil  eases  l)egun  in  state  courts  into  the 
federal  courts  will  receive  treatment  in  a  later  chapter.7  In 
these  cases  the  right  is  given  not  so  much  that  federal  supremacy 
may  be  maintained  as  that  impartial  tribunals  may  be  secured  to 
the  litigants. 

Tins  argument  of  the  minority  as  to  the  constitutional  incapacity  of  Con- 
gres-  to  provide  for  the  summary  removal  from  the  state  to  federal  courts  of 
cases  of  the  class  of  the  one  at  issue  overlooks,  or  at  least  puts  aside  as  not 
controlling,  the  possibility,  should  its  view  be  accepted,  of  a  State,  should  it 
so  desire,  so  administering  its  criminal  law  as  seriously  and  even  vitally  to 
interfere  with  the  exercise  by  the  Federal  Government  of  its  acknowledged 
constitutional  powers.  This  the  majority  pointed  out,  the  State  could  do  l>y 
so  delaying  the  trial  in  its  own  courts  of  federal  officials  charged  with  crime, 
as  to  render  in  large  measure  nugatory  the  right  of  the  accused  to  appeal  to 
the  United  States  Supreme  Court  from  the  highest  state  court. 

The  majority  doctrine  in  the  Davis  case  has  never  been  overruled. 

EStrauder  v.  West  Virginia,  100  TJ.  S.  303. 

e  Chapter  VIII. 

7  Chapter  L. 

9 


CHAPTER  VIII. 

MAINTENANCE  OF  FEDERAL  SUPREMACY  BY  HABEAS  CORPUS  TO 
STATE  AUTHORITIES. 

§  68.  State  Courts  may  not  Interfere  with  Federal  Authorities. 

During  the  ante  helium  period  the  Federal  Government  often 
made  use  of  state  tribunals  and  officers  for  the  execution  of  its 
laws.  Thus  state  justices  of  the  peace  acted  as  examining  magis- 
trates in  criminal  cases  for  the  federal  courts,  state  judges 
officiated  in  the  execution  of  extradition  treaties  with  foreign 
countries,  aliens  were  naturalized  in  state  courts,  and  state  jails 
and  penitentiaries  were  used  for  the  incarceration  of  federal  crim- 
inals. Both  because  of  this  admixture  of  federal  and  state  judi- 
cial agencies,  and  because  the  principle  of  the  absolute  inde- 
pendence of  the  Federal  Government  from  state  control  was  not 
clearly  recognized  and  admitted,  the  state  courts  early  assumed 
the  right,  by  the  issuance  of  writs  of  habeas  corpus,  to  determine 
whether  a  fugitive  from  the  justice  of  a  foreign  country  and 
fugitive  slaves  should  be  surrendered ;  whether  persons  in  the 
federal  army  were  properly  held  to  military  service ;  and  even 
whether  persons  in  the  military  service  of  a  foreign  State  should 
be  tried  for  acts  done  as  belligerents  and  under  the  authority  of 
their  sovereigns  in  conformity  with  the  laws  of  nations.1 

It  was  not  until  1859  that  it  was  authoritatively  established 
by  the  United  States  Supreme  Court  in  the  case  of  Ableman  v. 
Booth2  that  the  state  courts  were  without  the  constitutional  power 
to  interfere  in  any  way  with  the  process  of  federal  courts,  or, 
in  fact,  with  any  agencies  of  the  National  Government.3  Not- 
withstanding this  decision,  however,  a  number  of  the  state  courts 
still  claimed  and  exercised  the  right  to  discharge  enlisted  sol- 
diers and  sailors  of  the  United  States  from  the  custody  of  their 

i  People  v.  McLeod  (1  Hill,  377).  See  especially  the  paper  of  Seymour  D. 
Thompson  before  the  American  Bar  Association  at  its  annual  meeting  in 
1884,  entitled  Abuses  of  the  Writ  of  Habeas  Corpus. 

>21  How.  506;  16  L.  ed.  169.  * 

3  See  ante,  p.  84. 

[130] 


Federal  Supremacy  by  Habeas  Corpus.  131 

officers,  and  this  practice  was  not  stopped  until  1872  when,  in 
Tarble's  case,4  the  federal  Supreme  Court  held  this  to  be  beyond 
their  power.  In  the  opinion  which  he  rendered  in  this  case, 
Justice  Field,  after  pointing  out  the  distinct  and  independent 
character  of  the  government  of  the  United  States,  proceeds: 
"  Such  being  the  distinct  and  independent  character  of  the  two 
governments  within  their  respective  spheres  of  action,  it  follows 
that  neither  can  intrude  with  its  judicial  process  into  the  domain 
of  the  other,  except  so  far  as  such  intrusion  may  be  necessary  on 
the  part  of  the  National  Government  to  preserve  its  rightful 
supremacy  in  cases  of  conflict  of  authority.  In  their  laws,  and 
mode  of  enforcement,  neither  is  responsible  to  the  other.  How 
their  respective  laws  shall  be  enacted;  how  they  shall  be  carried 
into  execution;  and  in  what  tribunals,  or  by  what  officers;  and 
how  much  discretion,  or  whether  any  at  all  shall  be  vested  in 
their  officers,  are  matters  subject  to  their  own  control,  in  the 
regulation  of  which  neither  can  interfere  with  the  other.  Now 
among  the  powers  assigned  to  the  National  Government  is  the 
power  to  raise  and  support  armies,  and  the  power  to  provide  for 
the  government  and  regulation  of  the  land  and  naval  forces. 
.  .  .  No  interference  with  the  execution  of  this  power  of  the 
National  Government  in  the  formation,  organization  and  govern- 
ment of  the  armies  by  any  state  officials  could  be  permitted  with- 
out greatly  impairing  the  efficiency,  if  it  did  not  utterly  destroy, 
this  branch  of  the  public  service.  .  .  .  State  judges  and  state 
courts,  authorized  by  laws  of  their  States  to  issue  writs  of  habeas 
corpus,  have  undoubtedly  a  right  to  issue  the  writ  in  any  case 
where  a  party  is  alleged  to  be  illegally  confined  within  their  limits, 
unless  it  appear  upon  his  application  that  he  is  confined  under  the 
authority,  or  claim  and  color  of  the  authority,  of  the  United 
States,  by  an  officer  of  that  government.  If  such  fact  appear 
upon  the  application,  the  writ  should  be  refused."  5 

<U.  a  v.  Tarble   (13  Wall.  397;  20  L.  ed.  597). 

6  Chief  Justice  Chase  dissented  in  this  case.  In  the  course  of  his  opinion 
he  said :  "  I  have  no  doubt  of  the  right  of  a  State  to  inquire  into  the  juris- 
diction of  a  federal  court  upon  habeas  corpus,  and  to  discharge  when  satisfied 
that  the  petitioner  for  the  writ  is  restrained  of  liberty  by  the  sentence  of  a 


132  United  States  Coxstitutioxal  Law. 

Here  again,  as  in  the  Davis  case,  the  point  at  issue  narrowed 
itself  down  to  the  question  whether  or  not  state  agencies  should 
be  recognized  to  have  a  power  which  might,  should  the  States 
see  fit,  be  so  exercised  as  seriously  to  embarrass  the  Xational 
Government  in  the  performance  of  its  constitutional  duties.  The 
strict  application  of  the  doctrine  of  a  divided  sovereignty  would 
have  led  in  both  cases  to  a  constitutional  impasse.  But  in  these 
as  in  other  eases  the  federal  Supreme  Court  compelled  the  States 
in  the  exercise  of  their  powers  to  subordinate  themselves  to  the 
requirements  of  national  convenience  and  necessity. 

This  case  settled  once  for  all  the  principle  that  it  is  a  suffi- 
cient return  to  a  writ  of  habeas  corpus  issued  by  a  state  court 
that  the  party  is  in  custody  under  claim  or  color  of  federal 
authority  derived  from  either  a  statute  or  judicial  process. 

§  69.  Issuance  of  the  Writ  by  Federal  Courts. 

Instead  of  submitting  to  interference  by  the  States  with  the 
exercise  of  their  powers,  the  federal  courts  have,  especially  of 
recent  years,  again  and  again,  on  writs  of  habeas  corpus,  removed 
from  state  custody  persons  charged  with  offenses  against  the 
peace  of  the  States. 

The  Judiciary  Act  of  1789  gave  to  the  federal  court  authority 
to  issue  the  writ  of  habeas  corpus  only  as  to  persons  in  jail  under 
or  by  color  of  authority  of  the  United  States.  Xo  provision  waa 
thus  made  for  the  release  by  federal  courts  of  persons  in  custody 
by  order  of  the  authorities  of  a  State. 

court  without  jurisdiction.  If  it  errs  in  deciding  the  question  of  jurisdiction, 
the  error  must  be  corrected  in  the  mode  prescribed  by  the  25th  section  of  ths. 
Judiciary  Act;  net  by  denial  of  the  right  to  make  inquiry.  I  have  still  less 
doubt,  if  possible,  that  a  writ  of  habeas  corpus  may  issue  from  a  state  court 
to  inquire  into  the  validity  of  imprisonment  or  detention,  without  the  sentence 
of  any  court  whatever,  by  an  officer  of  the  United  States.  ...  To  deny  the 
right  of  state  courts  to  issue  the  writ,  or  what  amounts  to  the  same  thing,  to 
concede  the  right  to  issue  and  to  deny  the  right  to  adjudicate,  is  to  deny  the 
right  to  protect  the  citizen  by  habeas  corpus  against  arbitrary  imprisonment 
m  a  laTge  class  of  cases,  and,  I  am  thoroughly  persuaded,  was  never  within 
the  contemplation  of  the  Convention  which  framed  or  the  people  who  adopted 
the  Constitution.  That  instrument  expressly  declares  that  the  privilege  of 
tiie  writ  of  habeas  corpus  shall  not  be  suspended,  unless  when,  in  va-.ei  of 
rebellion  or  invasion,  the  public  safety  may  require  it." 


Federal  Supremacy  dy  Habeas  Corpus.  133 

The  u  Force  H  Act  of  1S33  gave  to  the  federal  courts  the  power 
to  issue  writs  of  habeas  corpus  "  in  all  cases  of  a  prisoner  or 
prisoners  in  jail  or  confinement  where  he  or  they  shall  be  com- 
mitted or  confined,  on  or  by  any  authority  or  law  for  any  act 
done,  or  omitted  to  be  done,  in  pursuance  of  a  law  of  the  United 
States,  or  any  order,  process  or  decree  of  any  judge  or  court 
thereof." 

In  1842  this  authority  of  the  federal  courts  was  further 
broadened  by  the  provision  that  the  writ  might  issue  when  a 
subject  or  citizen  of  a  foreign  State,  domiciled  therein,  is  in 
custody  because  of  an  act  done  or  omitted  under  an  alleged  right, 
title,  authority,  privilege,  protection,  or  exemption  claimed  under 
the  commission  or  order  or  sanction  of  any  foreign  State,  or 
under  color  thereof,  the  validity  or  effect  of  which  is  dependent 
upon  the  law  of  nations. 

This  act  of  1812  grew  out  of  the  McLeod  case.6  McLeod,  a 
British  subject,  was  arrested  and  indicted  for  murder  in  Xew 
York,  alleged  to  have  been  committed  by  him  while  one  of  a  force 
of  British  troops  which,  during  the  Canadian  rebellion  of  1837, 
made  an  attack  upon  the  steamer  "  Caroline  "  while  moored  in 
Xew  York  waters.  The  British  government  avowed  itself  re- 
sponsible for  the  act,  as  a  necessary  act  of  war,  the  steamer  being 
engaged  in  carrying  munitions  of  Avar  to  the  Canadian  insurgent 
forces,  and  demanded  of  the  United  States  Government  McLeod's 
immediate  release.  This  the  Federal  Government  requested  of 
the  Xew  York  authorities,  but  was  met  with  a  refusal,  and  found 
itself  unable  to  proceed  further  because  of  the  lack  of  jurisdic- 
tion of  the  federal  courts  to  issue  the  necessary  writ  of  habeas 
corpus. 

Tn  1SG7  the  jurisdiction  of  the  federal  courts  was  still  further 
widened  by  the  provision  that  the  writ  might  issue  "  in  all  cases 
where  any  person  may  be  restrained  of  his  or  her  liberty  in  vio- 
lation of  the  Constitution  or  any  treaty  or  law  of  the  United 
States."  7 

«  People  v.  MeLeod   (1  Hill.  377). 

7  The  federal  courts  also  have  authority  to  issue  the  writ  where  it  is  neces- 
sary to  bring  a  person  into  court  to  testify,  or  where  a  person  is  in  custody 


134  United  States  Constitutional  Law. 

Armed  with  the  authority  thus  given,  especially  by  the  act  of 
1867,  the  federal  courts  have  repeatedly  taken  from  the  custody 
of  the  States  persons  charged  therein  with  offenses  against  state 
law.  Even  the  lowest  of  the  federal  courts  have  not  hesitated  to 
exercise  the  power  as  to  persons  held  for  trial  before  the  highest 
courts  of  the  United  States. 

In  the  case  of  Thomas  v.  Loney5  the  Supreme  Court  sustained 
the  action  of  the  lower  federal  court  in  releasing  from  custody 
by  habeas  corpus  a  prisoner  who  had  been  arrested  by  state 
authority  for  alleged  perjury  committed  before  a  notary  public 
of  the  State  in  the  case  of  a  contested  election  of  a  member  of  the 
House  of  Representatives  of  the  United  States.  u  The  power  of 
punishing  a  witness,"  said  the  Supreme  Court,  "  for  testifying 
falsely  in  a  judicial  proceeding  belongs  peculiarly  to  the  govern- 
ment in  whose  tribunals  that  proceeding  is  had.  It  is  essential 
to  the  impartial  and  efficient  administration  of  justice  in  the 
tribunals  of  the  nation  that  witnesses  should  be  able  to  testify 
freely  before  them,  unrestrained  by  legislation  of  the  State,  or 
by  fear  of  punishment  in  the  state  courts.  The  administration 
of  justice  in  the  national  tribunals  would  be  greatly  embarrassed 
and  impeded  if  a  witness  testifying  before  a  court  of  the  United. 
States  or  upon  a  contested  election  of  a  member  of  Congress, 
were  liable  to  prosecution  and  punishment  in  the  courts  of  a 
State  upon  a  charge  of  perjury  preferred  by  a  disappointed  suitor 
or  contestant,  or  instigated  by  local  passion  or  prejudice.  A 
witness  who  gives  his  testimony,  pursuant  to  the  Constitution  and 
laws  of  the  United  States,  in  a  case  pending  in  a  court  or  other 
judicial  tribunal  of  the  United  States,  whether  he  testifies  in  the 
presence  of  that  tribunal,  or  before  any  magistrate  or  officer 
(either  of  the  nation  or  of  the  State)  designated  by  Act  of  Con- 
gress for  the  purpose,  is  accountable  for  the  truth  of  his  testi- 
mony to  the  United  States  only;  and  perjury  committed  in  so 

under  or  by  color  of  the  authority  of  the  United  States,  or  is  committed  for 
trial  before  some  court  thereof. 

«  134  U.  S.  372;  10  Sup.  Ct.  Rep.  384;  33  L.  ed.  949. 


Federal  Supremacy  by  Habeas  Corpus.      135 

testifying  is  an  offense  against  the  public  of  the  United  States, 
and  within  the  exclusive  jurisdiction  of  the  courts  of  the  United 
States." 

§  70.  The  Neagle  Case. 

The  leading  case,  however,  and,  in  some  respects,  the  most 
extreme,  in  upholding  the  power  of  the  federal  courts  in  the 
matter  of  the  issuance  of  writs  of  habeas  corpus  to  state  author- 
ities is  that  of  Re  Xeagle.0  In  that  case  it  was  held  that  without 
express  statutory  authorization,  the  general  authority  of  the 
President  to  see  that  the  laws  of  the  Union  are  faithfully  exe- 
cuted empowered  him  to  appoint  a  deputy  marshal  to  protect  a 
federal  judge  whose  life  was  threatened;  and  that  upon  such 
deputy  being  arrested  and  brought  to  trial  in  a  state  court  upon 
the  charge  of  murder  for  a  homicide  committed  while  acting 
within  the  line  of  the  duty  thus  assigned  him,  he  was  entitled 
to  release  on  habeas  corpus  issued  by  a  federal  judge.  In  this 
case  the  objection  was  raised  that  inasmuch  as  there  was  no  fed- 
eral statute  expressly  authorizing  such  protection  as  Xeagle  had 
been  instructed  to  give,  he  could  not  be  said,  in  the  language  of 
the  act  of  1867,  to  be  "  in  custody  for  an  act  done  or  omitted 
in  pursuance  of  a  law  of  the  United  States."  To  this  Justice 
Miller,  who  rendered  the  majority  opinion  of  the  Supreme  Court, 
replied :  "  In  the  view  we  take  of  the  Constitution  of  the  United 
States,  any  obligation  fairly  and  properly  inferable  from  that 
instrument,  or  any  duty  of  the  marshal  to  be  derived  from  the 
general  scope  of  his  duties  under  the  laws  of  the  United  States, 
is  a  '  law '  within  the  meaning  of  this  phrase.  It  would  be  a 
great  reproach  to  the  system  of  government  of  the  United  States, 
declared  to  be  within  its  sphere  sovereign  and  supreme,  if  there 
is  to  be  found  within  the  domain  of  its  powers  no  means  of  pro- 
tecting the  judges  in  the^  conscientious  and  faithful  discharge  of 
their  duties,  from  the  malice  and  hatred  of  those  upon  whom 
their  judgments  may  operate  unfavorably.  .  .  .  We  do  not 
believe  that  the  government  of  the  United  States  is  thus  ineffi- 


»  135  U.  S.  1;  10  Sup.  Ct.  Rep.  658;  34  L.  ed.  55. 


136  United  States  Constitutional  Law. 

cient,  or  that  its  Constitution  and  laws  have  left  the  high  officers 
of  the  government  so  defenseless  and  unprotected."  w 

§  71.  Writ  Issued  Only  when  Imperative. 

The  Supreme  Court  of  the  United  States,  though  uniformly 
affirming  the  doctrine  that  the  federal  courts  have  power,  by  writ 
of  habeas  corpus,  to  inquire  into  the  cause  of  the  restraint  of  the 
liberty  of  any  person  by  a  State  when  the  justification  of 
federal  authorization  or  immunity  is  set  up  for  the  act  com- 
plained of,  lias,  however,  repeatedly,  and  of  recent  years  with 
increasing  emphasis,  laid  down  the  doctrine  that  the  federal 
courts  should  not,  except  in  cases  of  peculiar  urgency,  exercise 
that  power,  but  should  leave  such  persons  to  pursue  their  remedy 
by  writ  of  error  to  the  federal  Supreme  Court,  after  the  adjudi- 
cation of  their  cases  in  the  States'  highest  courts. 

In  Ex  parte  Royall,11  decided  in  1886,  the  Supreme  Court  of 
the  United  States,  while  upholding  the  constitutional  power  of 
Congress  to  grant  to  the  federal  courts  jurisdiction  to  issue  writs 
of  habeas  corpus  in  all  cases  where  persons,  in  alleged  violation 
of  the  Constitution,  are  in  custody  of  a  state  court,  took  pains 
to  emphasize  the  fact  that  the  jurisdiction  is  to  be  exercised  at 
the  discretion  of  the  court,  and,  in  the  case  at  bar,  sustained  the 

io  Chief  Justice  Fuller  and  Justice  Lamar  dissented  from  the  judgment  in 
the  Xeagft  case  upon  the  ground  that  the  President  had  had  no  const itutional 
power,  in  the  absence  of  congressional  authority,  to  provide,  through  the 
Attorney-General,  a  guard  for  Justice  Field.  Why,  they  asked,  if  the  Presi- 
dent had  this  power,  had  it  been  necessary  to  pass  various  habeas  corpus  acts? 
"  Why  could  not  President  Jackson,  in  1833,  as  the  head  of  the.  Executive 
Department,  invested  with  the  power  and  charged  with  the  duty  to  take  care' 
that  the  laws  be  faithfully  executed  and  to  defend  the  Constitution,  have 
enforced  the  collection  of  the  federal  revenues  in  the  Port  of  Charleston,  and 
have  protected  the  revenue  officers  of  the  government  against  any  arrest  made 
under  the  pretensions  of  the  state  authority  with  the  aid  of  the  act  of  1S33? 
Why,  in  1842,  when  the  third  Habeas  Corpus  Act  was  passed,  .could  not  the 
President  of  the  United  States  by  virtue  of  the  same  self-existing  powers 
of  the  Executive,  together  with  those  of  the  Judicial  Department,  have  en- 
forced the  international  obligations  of  the  government  without  any  such  act 
of  Congress  ?  " 

11  117  U.  S.  241;  6  Sup.  Ct.  Rep.  734;  29  L.  ed.  868. 


Uedeilil  Scpkemact   by   IIabkas  Corpus.  l-')7 

refusal  of  the  Circuit  Conrt  to  issue  the  writ.  "  We  are  of 
opinion,"  said  the  court,  "  that  while  the  Circuit  Court  has  the 
puwer  to  do  so,  and  may  discharge  the  accused  in  advance  of  his 
trial  if  he  is  restrained  of  his  liberty  in  violation  of  the  Xational 
Constitution  it  is  not  bound  in  every  case  to  exereise  such  a 
power  immediately  upon  application  for  the  writ  We  cannot 
suppose  that  Congress  intended  to  compel  those  courts,  by  such 
means,  to  draw  to  themselves,  in  the  first  instance,  the  control 
of  all  criminal  prosecutions  commenced  in  state  courts  exercising 
authority  within  the  same  territorial  limits,  where  the  aceused 
claims  that  he  is  held  in  custody  in  violation  of  the  Constitution 
of  the  United  States.  The  injunction  to  hear  the  case  summarily 
and  thereupon  '  to  dispose  of  the  party  as  law  and  justice  require ' 
does  not  deprive  the  court  of  discretion  as  to  the  time  and  the 
mode  in  which  it  will  exercise  the  powers  conferred  upon  it. 
That  discretion  should  be  exercised  in  the  light  of  the  relations 
existing  under  our  system  of  government,  between  the  judicial 
tribunals  of  the  Union  and  of  the  States,  and  in  recognition  of 
the  fact  that  the  public  good  requires  that  those  relations  be  not 
disturbed  by  unnecessary  conflict  between  courts  equally  bound 
to  regard  and  protect  rights  secured  by  the  Constitution." 

From  the  quotations  which  have  just  been  made  it  is  apparent 
that  in  the  issuance  of  the  writ,  a  distinction  is  made  between 
those  cases  in  which  its  issuance  is  necessary  to  protect  the  Gen- 
eral Government  in  the  execution  of  its  functions,  and  those  in 
which  the  question  is  merely  one  of  the  petitioner's  right  to 
liberty.  In  this  latter  class  of  eases,  "  if,"  the  court  say,  "  it  is 
apparent  upon  the  petition  that  the  writ,  if  issued,  ought  not, 
on  principles  of  law  and  justice,  to  result  in  the  immediate  dis- 
charge of  the  accused  from  custody,  the  court  is  not  bound  to 
■ward  it  ;is  Boon  as  the  application  is  made."  The  federal  courts, 
the  opinion  goes  on  to  declare,  arc  to  assume  that  the  state  courts 
will  neither  do  injustice  nor  disregard  the  settled  principles  of 
federal  constitutional  law.  If,  however,  they  should  do  so,  the 
petitioner  still  has  the  privilege  of  taking  his  case  by  writ  of 


138  United  States  Constitutional  Law. 

error  from  the  highest  state  court  to  the  Supreme  Court  of  the 
United  States.12 

The  act  of  1867  provides  that,  upon  return  of  the  writ  of 
habeas  corpus,  "  the  court  or  justice,  or  judge,  shall  proceed  in 
a  summary  way  to  determine  the  facts  of  the  case,  by  hearing 
the  testimony  and  arguments,  and  thereupon  to  dispose  of  the 
party  as  law  and  justice  require."  13 

It  would  not  appear  to  be  certainly  settled  just  what  is  the 
facts  to  be  determined  and  just  what  the  action  is  to  be  taken  by 
the  federal  court  in  all  cases  where  the  party  suing  out  the  writ 
claims  that  the  act  charged  against  him  in  the  state  court  was 
done  under  the  authority  of  the  United  States  or  in  pursuance  of  a 
process  of  its  courts.  When,  by  means  of  the  writ,  the  federal 
court  has  brought  the  accused  under  its  control,  is  it  its  duty  in 
all  cases  to  determine  whether  the  accused  was  an  officer  of  the 
United  States  and  further  whether  he  had  acted  in  good  faith, 
and  within  the  scope  of  his  federal  authority,  and  therefore  en- 
titled to  a  discharge;  and,  if  not,  to  impose  such  penalty  as  the 
law  and  facts  require?  Or  is  it  the  duty  of  the  federal  court, 
where  the  question  is  not  as  to  the  federal  authority  which  is  set 
up,  but  whether  in  fact  that  authority  has  been  overstepped,  and 
there  is  conflicting  evidence  as  to  this,  is  it  the  duty  of  the  federal 
court  to  remand  the  party  to  the  state  court  for  the  determination 
of  the  question?  — 

12  For  later  refusals  of  the  federal  courts  to  issue  the  writ  of  habeas  corpus 
to  persons  in  the  custody  of  state  courts  in  alleged  violation  of  the  Con- 
stitution, see  Tinsley  v.  Anderson  (171  U.  S.  101;  18  Sup.  Ct.  Rep.  805; 
43  L.  ed.  91)  and  United  States  ex  rel.  Drury  v.  Lewis  (200  U.  S.  1 ;  26 
Sup.  Ct.  Rep.  229;  50  L.  ed.  343).  In  the  first  of  those  cases  the  Supreme 
Court  reversed  the  judgment  of  the  lower  court,  and  dismissed  the  writ  of 
habeas  corpus  which  it  had  issued,  and  remanded  the  accused  to  the  custody 
of  the  state  authorities.  In  Ex  parte  Wood  (155  Fed.  190),  decided  in  1907, 
habeas  corpus  was  granted  by  a  federal  court  for  the  release  of  one  who  was 
charged  in  a  state  court  with  a  violation  of  a  state  law,  the  enforcement  of 
which  had  previously  been  enjoined  by  a  federal  court  because  unconstitu- 
tional. 

13  Rev.  St.,  Sec.  761. 


Federal  Supremacy  by  Habeas  Corpus.  "  139 

The  opinions  in  the  Ableman  and  Tarble  cases,  and  the  reason- 
ing of  the  court  in  Tennessee  v.  Davis,  would  seem  to  indicate 
that  the  former  action  is  the  correct  one,  namely,  that  the  federal 
court  should  not  remand  the  accused  to  the  state  court,  but  itself 
determine  the  fact  whether  he  has  acted  in  excess  of  his  federal 
authority.  In  United  States  ex  rel.  Drury  v.  Lewis,14  however, 
the  court  accepted  the  alternative  doctrine,  and  remanded  the 
accused  for  trial  to  the  state  court,  the  evidence  being  conflicting 
as  to  whether  or  not  in  fact  he  had  exceeded  his  federal  authority. 

The  court,  quoting  from  Baker  v.  Grice15  say;  "It  is  an 
exceedingly  delicate  jurisdiction  given  to  the  federal  courts  by 
which  a  person  under  an  indictment  in  a  state  court,  and  subject 
to  its  laws,  may,  by  the  decision  of  a  single  judge  of  the  federal 
court,  upon  a  writ  of  habeas  corpus,  be  taken  out  of  the  custody 
of  the  officers  of  the  State,  and  finally  discharged  therefrom,  and 
thus  a  trial  by  the  state  courts  of  an  indictment  found  under  the 
laws  of  a  State  be  finally  prevented.  Cases  have  occurred  of  so 
exceptional  a  nature  that  this  course  has  been  pursued."  16  In 
the  case  at  bar,  however,  the  court  find  that  there  were  not  pres- 
ent the  exceptional  circumstances  justifying  this  federal  inter- 
vention, and  that  the  evidence  was  conflicting  as  to  whether  the 
act  charged  was  done  in  performance  of  a  federal  authority.  This 
being  so,  the  court  declare,  it  is  the  proper  province  of  the  state 
court  and  not  of  the  federal  tribunal  to  determine  this  question. 

The  court  in  this  case,  in  the  position  which  it  assumed,  cites 
no  prior  cases  exactly  in  point.  It  does  indeed  refer  to  earlier 
adjudications,  but  none  of  these  had  reference  to  instances  in 
which  persons  in  custody  of  state  authorities  sought  release 
upon  the  claim  that  the  acts  charged  against  them  were  done 
in  the  course  of  official  duty.  In  each  instance  the  petitioners 
based  their  claim  to  release  upon  the  ground  that  the  imprison- 
ment by  the  state  authorities  was  in  violation  of  their  individual 
rights   under  the   Constitution,  laws   or  treaties  of  the  United 

M  200  U.  S.  1 ;  26  Sup.  Ct.  Rep.  220 ;  50  L.  ed.  343. 
15  100  U.  SL  284;  18  Sup.  Ct.  Rep.  323;  42  L.  ed.  748. 

is  Citing  Re  Loney  i  134  U.  S.  372;  10  Sup.  Ct.  Rep.  384;  33  L.  ed.  949)  ; 
Re  Xeagle  (135  U.  S.  1;  10  Sup.  Ct.  Rep.  658;  34  L.  ed.  55). 


140'  United  States  Constitutional  Law. 

States.  In  such  cases  there  was  of  course  no  reason  based  upon 
federal  governmental  supremacy  and  efficiency,  why  the  federal 
courts  should  not,  in  their  discretion,  leave  the  petitioners  to  set 
up  such  defense  as  they  might  have  in  the  state  courts,  and  on 
writ  of  error  therefrom  to  the  federal  Supreme  Court.1' 

it  The  law  regarding  the  jurisdiction  of  the  state  courts  over  federal  officers 
is  discussed  in  a  valuable  article  by  Mr.  James  L.  Bishop  in  the  Columbia 
Law  Review  for  May,  1909,  entitled  "The  Jurisdiction  of  State  and  Federal 
Courts  over  Federal  Officers."  Mr.  Bishop  suggests  that  the  maintenance 
of  the  freedom  of  federal  authority  from  state  interference,  and  at  the  same 
time  the  preservation  of  the  proper  powers  of  the  state  courts  could  be 
secured  by  extending  the  right  of  removal  of  cases  from  the  state  to  federal 
courts,  now  given  under  Section  643  of  the  Revised  Statutes  to  federal  revenue 
officers,  to  all  officers  acting  under  authority  of  the  United  States;  and  that 
the  issuance  of  the  writ  of  habeas  corpus  by  federal  courts  be  limited  so  as 
to  be  merely  ancillary  to  such  right  of  removal. 


CHAPTER  IX. 

THE   MAINTENANCE    OF    FEDERAL    SUPREMACY;    THE    INDEPEND- 
ENCE OF  FEDERAL  COURTS  FROM  STATE  INTERFERENCE. 

§  72.  Independence  of  Federal  Authorities. 

A  federal  court  having  assumed  jurisdiction  over  a  person  or 
piece  of  property,  the  state  authorities  are  excluded  from  any 
interference  therewith  or  from  in  any  way  assumiug  jurisdiction 
therein.  This  principle  was  violated  by  the  authorities  of  the 
State  of  Wisconsin  in  the  case  of  Ableman  v.  Booth1  in  annulling 
the  proceedings  of  a  commissioner  of  the  United  States  and  dis- 
charging a  prisoner  who  had  been  committed  by  the  commis- 
sioner for  an  offense  against  a  federal  law.  The  Supreme  Court 
of  the  United  States  declared  the  impropriety  of  these  actions  in 
the  following  language:  "  The  supremacy  of  the  state  courts  over 
the  courts  of  the  United  States,  in  cases  coming  under  the  Con- 
stitution and  laws  of  the  United  States  is  now  for  the  first  time 
asserted  and  acted  upon  in  the  supreme  court  of  a  State."  Pro- 
testing against  this  action,  the  opinion  declares:  "...  We 
do  not  question  the  authority  of  state  court,  or  judge,  who  is  au- 
thorized by  the  laws  of  the  State  to  issue  the  writ  of  habeas  corpus, 
to  issue  it  in  any  case  where  the  party  is  imprisoned  within  its 
territorial  limits,  provided  it  does  not  appear,  when  the  applica- 
tion is  made,  that  the  .person  imprisoned  is  in  custody  under  the 
authority  of  the  United  States.  The  court  or  judge  has  a  right 
to  inquire,  in  this  mode  of  proceeding,  for  what  cause  and  by 
what  authority  the  prisoner  is  confined  within  the  territorial 
limits  of  the  state  sovereignty.  But,  after  the  return  is  made, 
and  the  state  judge  or  court  is  judicially  apprised  that  the  party 
is  in  custody  under  the  authority  of  the  United  States,  they 
can  proceed  no  further." 

That  a  state  eourt  has  no  power  to  issue  a  mandamus  or  writ  of 
certiorari  to  a  federal  officer  is  not  questioned.2 

121  How.  506. 

2M'Clung  v.  Silliman,  6  Wh.  598;  5  L.  ed.  340:  Kendall  v.  U.  St,  12  Pet. 
524;  9  L.  ed.  1181;  U.  S.  v.  Schurz   (102  U.  S.  378;  20  L.  ed.  1«7). 

[141] 


142  United  States  Constitutional  Law. 

The  inability  of  the  state  courts  by  injunction  or  otherwise  to 
control  proceedings  in  federal  courts  is  declared  in  Weber  v.  Lee 
Co.,3  United  ,States  v.  Keokuk,4  and  Supervisors  v.  Durante  This 
inability  arises  not  so  much  from  the  supremacy  of  the  federal 
courts  as  because  the  state  and  federal  judicial  systems  are  inde- 
pendent of  one  another.  In  Weber  v.  Lee  Co.  the  court  say:  "  State 
courts  cannot  enjoin  the  process  of  proceedings  in  the  circuit 
[federal]  courts;  not  on  account  of  any  paramount  jurisdiction 
in  the  latter,  but  because  they  are  entirely  independent  in  their 
sphere  of  action."  The  same  reason  is  given  in  United  States  v. 
Keokuk. 

§  73.  Injunctions  from  Federal  to  State  Courts. 

It  isr  however,  not  quite  correct  to  say  that  the  two  judicial 
systems  are  u  entirely  independent  in  their  sphere  of  action."  It 
is  true  that  the  state  courts  are  wholly  without  power  in  any  way 
to  control  the  operations  of  the  federal  courts,  but  the  reverse  is 
not  true.  As  has  already  appeared,  a  writ  of  error  lies  in  certain 
cases  from  the  federal  Supreme  Court  to  the  state  courts,  and, 
when  removal  of  a  case  is  sought,  the  federal  courts  may  issue 
a  writ  of  certiorari  to  the  state  court  demanding  a  copy  of  the 
record,  and  the  clerk  of  the  state  court  refusing  compliance  with 
this  demand  becomes,  imder  an  act  of  Congress,  liable  to  fine  or 
imprisonment.  Furthermore  the  federal  courts  possess  the  right 
to  protect  their  own  jurisdictional  rights  or  the  rights  of  parties 
to  suits  before  them  by  restraining  orders  forbidding  proceedings 
in  the  state  courts. 

It  is  true  that,  actuated  by  a  desire  to  preserve  so  far  as  possi- 
ble the  independence  of  the  state  judiciaries  Congress,  by  act  of 
1793,6  which  is  still  in  force,  has  provided  that  "  the  writ  of  in- 
junction shall  not  be  granted  by  any  court  of  the  United  States 
to  stay  proceedings  in  any  court  of  a  State,  except  in  cases  where 
such  an  injunction  may  be  authorized  by  any  law  relating  to  pro- 
ceedings in  bankruptcy."    But,  in  other  than  cases  in  bankruptcy, 

3  6  Wall.  210;   18  L.  ed.  781. 
«6  Wall.  514;    18  L.  ed.   933. 
6  9  Wall.  415;   19  L.  ed.  732. 
e  Rev.  St.,  Sec.  720. 


Independence  of  Federal  Courts.  143 

the  federal  courts  have  not  hesitated  to  enjoin  proceedings  in  state 
courts  where  this  has  been  necessary  to  preserve  their  own  juris- 
dictional rights,  or  to  protect  individuals  in  their  federal  rights. 
Thus  in  Dietzsch  v.  Huidekoper7  it  was  held  that  the  prohibition 
of  Section  720  of  the  Kevised  Statutes  would  not  prevent  a  fed- 
eral court  from  issuing  an  injunction  restraining  proceedings 
on  a  replevin  bond,  the  state  suit  being  based  on  a  judgment 
obtained  in  a  state  court  after  the  defendant  had  removed  the 
case  to  the  federal  courts  and  there  obtained  judgment  in  his 
favor.  The  court  said :  "  The  action  on  the  replevin  bond  in  that 
[the  state]  court  was  simply  an  attempt  to  enforce  the  judgment 
of  that  court  in  the  replevin  suit,  rendered  after  its  removal  to 
the  United  States  circuit  court,  and  after  the  state  court  had  lost 
all  jurisdiction  over  the  case.  If  no  judgment  had  been  rendered 
in  the  state  court  against  the  plaintiffs  in  the  replevin  suit,  no 
action  could  have  been  maintained  upon  the  replevin  bond.  The 
bond  took  the  place  of  property  seized  in  replevin,  and  a  judg- 
ment upon  it  was  equivalent  to  an  actual  return  of  the  replevied 
property.  The  suit  upon  the  replevin  bond  was,  therefore,  but 
an  attempt  to  enforce  a  pretended  judgment  of  the  state  court, 
rendered  in  a  case  over  which  it  had  no  jurisdiction,  but  which 
had  been  transferred  to  and  decided  by  the  United  States  Circuit 
Court,  by  a  judgment  in  favor  of  the  plaintiffs  in  replevin.  The 
bill  [for  injunction]  in  this  case  was,  therefore,  ancillary  to  the 
replevin  suit,  and  was  in  substance  a  proceding  in  the  federal 
court  to  enforce  its  own  judgment  by  preventing  the  defeated 
party  from  wresting  the  replevied  property  from  the  plaintiffs  in 
replevin,  who,  by  the  judgment  of  the  court,  were  entitled  to  it, 
or  what  was  in  effect  the  same  thing,  preventing  them  from  en- 
forcing a  bond  for  the  return  of  the  property  to  them.  A  court 
of  the  United  States  is  not  prevented  from  enforcing  its  own  judg- 
ments by  the  statute  which  forbids  it  to  grant  a  writ  of  injunction 
to  stay  proceedings  in  a  state  court."  8 

7  103  U.  S.  404;  26  L.  ed.  497. 

« In  Mississippi  Railroad  Commission  v.  Illinois  Central  R.  Co.  (203  U.  S. 
335;  27  Sup.  Ct.  Rep.  90;  51  L.  ed.  209)  it  was  held  that  the  commission 
me  not  a  court  within  the  meaning  of  Rev.  St.,  Sec.  720. 


144  United  States  Constitutional  Law. 

In  Martin  v.  Hunter's  Lessee,0  a  case,  it  Avill  be  remembered, 
arising  out  of  the  refusal  of  the  state  court  to  obey  a  mandate  from 
the  federal  tribunal,  the  court  did  not  find  it  necessary  to  decide 
whether  or  not  the  federal  court  had  the  power  to  issue  a  man- 
damus to  the  Virginia  court  to  enforce  its  former  judgment.  In- 
stead, the  eourt  simply  reversed  the  judgment  of  the  Virginia 
Court  of  Appeals  and  affirmed  that  of  the  lower  court.  Justice 
Johnson  rendered  a  concurring  opinion  in  which  he  said :  u  The 
presiding  judge  of  the  state  eourt  is  himself  authorized  to  issue 
the  writ  of  error,  if  he  will,  and  thus  give  jurisdiction  to  the  Su- 
preme Court ;  and  if  he  thinks  proper  to  decline  it,  no  compulsory 
process  is  provided  by  law  to  oblige  him.  The  party  who  im- 
agines himself  aggrieved  is  then  at  liberty  to  apply  to  a  judge  of. 
the  United  States,  who  issues  the  writ  of  error,  which  (whatever 
its  form)  is,  in  substance,  no  more  than  a  mode  of  compelling 
the  opposite  party  to  appear  before  this  court  and  maintain  the 
legality  of  his  judgment  obtained  before  the  state  tribunal.  An 
exemplification  of  the  record  is  the  common  property  of  every  one 
who  chooses  to  apply  and  pay  for  it,  and  thus  the  case  and  the 
party  are  brought  before  us." 

After  pointing  out  that  the  court  disavowed  all  intention  to  de- 
cide as  to  the  right  to  issue  a  compulsory  process  to  the  state 
courts,  Justice  Johnson,  however,  goes  on  to  argue  that  the  federal 
court  might  properly  issue  a  mandamus  only  to  the  lower  federal 
courts,  and  that  in  case  a  state  court,  whose  decrees  might  be  re- 
versed by  the  federal  court,  should  refuse  to  alter  its  action  in 
obedience  thereto,  the  federal  Supreme  Court,  under  authority 
granted  by  the  Judiciary  Act,  where  the  case  had  once  before  been 
remanded,  could  itself  proceed  to  a  final  decision  of  the  case  and 

In  French  v.  Hay  (22  Wall.  250;  22  L.  ed.  857)  the  court  say:  "The 
piohibition  in  the  Judiciary  Act  against  the  granting  of  injunctions  by  the 
courts  of  the  United  States  touching  proceedings  in  state  courts  has  no  ap- 
plication here.  The  prior  jurisdiction  of  the  court  below  took  the  case 
out  of  the  operation  of  that  provision.  If  the  state  courts  should  persist 
in  proceeding  —  a  thing  not  to  be  expected  —  the  wrong  will  be  on  the  part 
of  those  tribunals  and  not  of  the  court  below." 

s  1  Wh.  304 ;  4  L.  ed.  97. 


Independence  of  Fedebae  Coikts.  145 

the  awarding  of  a  judgment  thereupon.10  By  this  means  .and  by 
a  liberal  use  of  the  writ  of  injunction  and  that  of  habeas  corpus 
ad  subjeciendum.  Justice  Johnson  declared  that  the  constitu- 
tional revising  power  might  be  fully  secured  to  the  United  States 
without  ever  resorting  to  compulsory  or  restrictive  processes  upon 
the  state  tribunals. 

The  circumstances  under  which  the  federal  courts  "will  issue 
injunctions  restraining  state  officials  from  enforcing,  or  bringing 
suits  in  the  state  courts  to  enforce  a  state  act  which  is  alleged  to 
be  in  contravention  of  the  federal  Constitution  will  be  further  con- 
sidered in  chapter  LI  Y,  in  which  the  suability  of  the  State  is  dis- 
cussed. 

The  federal  courts  have  not  been  given,  nor  could  they  constitu- 
tionally be  given,  the  jurisdiction  to  issue  writs  of  mandamus  to 
compel  the  performance  by  state  officials  of  state  duties.11  The 
constitutional  power  of  Congress  to  authorize  the  federal  courts, 
by  writs  of  mandamus,  to  compel  the  performance  of  duties, 
whether  by  state  or  federal  officials,  imposed  by  federal  law  would 
seem  to  be  beyond  question,  though  Congress  has  not  yet  seen  fit  to 
grant  to  these  courts  the  power  except  as  ancillary  to  jurisdiction 
already  otherwise  obtained.12  It  is  to  be  remembered,  however, 
that  Congress  cannot,  without  the  consent  of  the  State,  impose 
upon  its  functionaries  the  performance  of  federal  duties.  Where, 
however,  the  act  ordered  is  one  unconnected  with  his  official  state 
duties,  the  fact  that  an  individual  is  a  state  functionary  would 
not  exempt  him  from  the  mandatory  power  of  the  federal  courts. 

§  74.  State  Restrictions  upon  the  Right  of  Removal  of  Suits 
from  State  to  Federal  Courts. 
By  various  acts  of  Congress  rights  have  been  granted  to  de- 
fendants to  remove  into  federal  courts  civil  actions  begun  in  state 

10  By  Act  of  1S<;7  <  Rev.  Mat..  Sec.  709),  the  Supreme  Court  was  given  this 
power  without  reference  to  whether  or  not  the  case  had  been  previously 
remanded.  That  act  provides.  '•  the  Supreme  Court  may,  at  their  discretion, 
pr.  coed  to  a  final  decision  and  award  execution,  or  remand  the  case  to  the 
inferior  court." 

UPrigg  v.  Pennsylvania    (16  Pet.  539;   10  L.  ed.   1060). 

12  U.  S.  v.  Circuit  Court    (126  Fed.  Fvep.   109). 

10 


146  United  States  Constitutional  Law. 

courts,  where  there  is  a  diversity  of  citizenship  of  the  parties. 
This  right,  which  will  be  more  fully  discussed  in  a  later  chapter,13 
is  granted,  not  that  federal  supremacy  may  be  maintained,  but 
that  an  impartial  tribunal  may  be  secured  in 'suits  in  which  citi- 
zens of  different  States  are  parties.  One  important  question, 
however,  with  reference  to  the  maintenance  of  federal  authority, 
has  arisen  in  connection  with  the  right  of  removal  based  upon 
diversity  of  citizenship,  and  this  is  as  to  the  authority  of  the  States 
to  prevent  foreign  corporations  from  exercising  this  federal  privi- 
lege by  making  it  a  condition  precedent  to  their  being  allowed  to 
enter  the  State  or  to  continue  to  do  business  therein  that,  when 
sued  by  a  citizen  of  the  State,  they  will  not  have  the  cause  re- 
moved into  the  federal  courts.  Here  it  is  apparent  that  thjs  ques- 
tion is  not  so  much  the  right  of  the  State  to  interfere  with  the 
exercise  by  a  federal  court  of  its  jurisdiction  when  obtained,  as 
it  is  to  prevent  that  jurisdiction  from  being  invoked. 

That  States  cannot  put  restrictions  upon  the  removal  of  cases 
from  their  courts  to  federal  tribunals  any  more  than  they  can 
prevent  it  was  declared  in  a  case  arising  under  a  statute  of  the 
State  of  Wisconsin  which  provided  that  insurance  companies  of 
other  States  desiring  to  do  business  within  its  limits  should  sign 
a  written  agreement  that  they  would  not  remove  to  the  federal 
courts  suits  brought  against  them  in  the  State's  courts.  One  of 
these  companies,  having  removed  a  case  to  the  federal  courts  not- 
withstanding its  agreement  not  to  do  so,  the  "Wisconsin  courts, 
ignoring  the  fact  of  its  removal,  proceeded  with  the  case  and  ren- 
dered judgment  against  the  company.  The  Supreme  Court  of  the 
United  States,  upon  appeal  to  it,  declared  the  judgment  void  upon 
the  ground  that  the  agreement  itself  and  the  statute  requiring  it 
were  illegal,  as  no  one  could  be  compelled  to  bind  himself  in 
advance  not  to  exercise  a  right  guaranteed  to  him  by  the  Consti- 
tution any  more  than  he  could  barter  away  his  life  or  freedom.14 

When,  however,  in  a  later  case,  the  Supreme  Court  of  the 
United  States  was  asked  to  issue  an  injunction  forbidding  the 

13  See  Chapter  L. 

"Home  Insurance  Co.  v.  Morse   (20  Wall.  445;  22  L.  .ed.  365). 


Independence  of  Federal  Couets.  147 

Secretary  of  State  of  Wisconsin  to  revoke  the  license  of  an  insur- 
ance company  that  had  violated  its  agreement  not  to  remove,  that 
court  held  that  it  could  not  thus  control  the  action  of  a  state 
official,  even  though  his  action  was  apparently  based  upon  an  im- 
proper ground.  The  court  said :  "  The  argument  that  the  revoca- 
tion in  question  is  made  for  an  unconstitutional  reason  cannot  be 
sustained.  The  suggestion  confounds  an  act  with  an  emotion  or 
a  mental  proceeding  which  is  not  the  subject  of  inquiry  in  deter- 
mining the  validity  of  a  statute."15  In  other  words  it  was  held 
that  the  right  both  of  granting  and  of  revoking  a  license  to  a  for- 
eign corporation  to  do  business  within  a  State  belonging  to  the 
proper  officer  of  that  State,  it  was  not  within  the  competence  of  a 
federal  court  to  determine  whether  that  power  was  exercised  for 
a  good  or  bad  reason  or  for  no  reason  at  all. 

But  when,  in  a  still  later  case,  there  was  drawn  into  question 
the  operation  of  a  statute  of  Iowa  which  declared  that  upon  the 
violation  by  a  foreign  insurance  company  of  its  agreement  not  to 
remove  a  case  to  the  federal  courts,  its  license  should  thereby  be- 
come void,  the  federal  Supreme  Court  held  that  the  violation  of 
an  illegal  agreement  could  not  of  itself  operate  as  a  revoca- 
tion of  the  company's  license.  If  revoked  at  all  it  would  have  to 
be  by  the  act  of  a  competent  state  official,  and  not,  ipso  facto,  by 
the  exercise  of  a  constitutional  right.10 

This  entire  subject  was  reviewed  in  Security  Mutual  Life  In- 
surance Co.  v.  Prewitt17  in  which  it  was  held  that  a  State  may 
by  statute  provide  that  if  a  foreign  insurance  company  shall  re- 
move to  a  federal  court  a  case  which  has  been  commenced  in  a 
state  court,  the  license  of  such  company  to  do  business  within  the 
State  shall  thereupon  be  revoked.  In  its  opinion  the  court  say: 
"  It  is  admitted  that  a  State  has  power  to  prevent  a  company  from 
coming  into  its  domain,  and  that  it  has  the  power  to  take  away 
the  right  to  remain  after  having  been  permitted  once  to  enter,  and 
that  right  may  be  exercised  from  good  or  bad  motives;  but  what 
the  company  denied  [in  this  case]  is  the  right  of  a  State  to  enact 

15  Doyle  v.  Continental   Insurance  Co.    (94  U.  S.  535;   24  L.  ed.   148). 
"Barron  v.  Burnside   (121  V.  S.  186;  7  Sup.  Ct.  Rep.  031;  30  L.  ed.  915). 
"202  U.  S.  246;  26  Sup.  Ct.  Rep.  619;  50  L.  ed.  1013. 


.148  United  States  Constitutional  Law. 

in  advance  that  if  a  company  remove  a  case  to  a  federal  court,  its 
license  shall  be  revoked.  ^re  think  this  distinction  is  not  well 
founded.  The  truth  is  that  the  effect  of  the  statute  is  simply  tc 
place  foreign  companies  upon  a  par  with  the  domestic  ones  doing 
business  in  Kentucky.  Xo  stipulation  or  agreement  being  we- 
auired  as  a  condition  for  coming  into  the  State  and  obtaining  a 
permit  to  do  business  therein,  the  mere  enactment  of  a  statute 
which,  in  substance,  says  if  you  choose  to  exercise  your  right  to 
remove  a  case  into  a  federal  court,  your  right  to  further  do  busi- 
ness within  the  State  shall  cease  and  your  permit  shall  be  with- 
drawn, is  not  open  to  any  constitutional  objection.  The  reasoning 
in  the  Doyle  case  we  think  is  good." 18 

-From  the  foregoing  cases  it  is  apparent  that  no  abandonment 
is  really  made  of  the  principle  that  the  States  are  constitutionally 
incompetent  to  interfere  with  or  prohibit  the  exercise  of  a  fed- 
eral right.  Corporations  chartered  in  one  State  and  doing  busi- 
ness in  another  State  may  exercise  the  right  of  removal  given 
them  by  the  federal  statutes  without  reference  to  what  the  laws 
of  the  States  in  which  they  are  doing  business  may  provide,  and 
this  they  may  do  even  if  they  have  contracted  with  those  state 
authorities  not  to  exercise  these  rights.  The  fact  that  the  state 
authorities,  in  the  exercise  of  a  power  acknowledged  to  be  pos- 
sessed by  them,  withdraw,  or  threaten  to  withdraw,  a  privilege 
which  they  have  granted,  furnishes  no  ground  for  federal  relief. 
There  is,  to  be  sure,  a  causal  nexus  between  the  exercise  of  the 
federal  right  of  removal  and  of  the  State's  right  to  withdraw  its 
permission  to  the  foreign  corporation  to  do  business  within  the 
State's  limits.  But,  legally  speaking,  there  is  no  connection.  Each 
is  the  exercise  of  an  independent  right.  The  case  is  not  similar 
to  one  where  the  State  interferes  with  or  hinders  the  operation 
of  a  federal  agency,  as,  for  example,  the  taxation  of  its  franchise. 
In  the  cases  above  considered,  no  attempt  is  made  by  the  States  to 
declare  what  cases  shall  and  what  cases  shall  not  be  removed  into 
the  federal  courts,  or  in  any  way  to  interfere  with  the  exercise 

is  A  strong  dissenting  opinion,  concurred  in  by  Justice  Harlan,  -was  filed 
in  this  case  by  Justice  Day. 


Lvdepexdexce  ob  Federae  Couets.  149 

of  their  jurisdiction,  by  those  courts  after  the  cases  have  been  re- 
moved into  them.  Whenever  this  has  been  attempted  the  federal 
courts  have  prevented  it.  Thus  it  has  been  repeatedly  declared 
that  the  jurisdiction  conferred  upon  the  federal  courts  cannot  be 
in  any  way  abridged  or  impaired  by  the  statutes  of  a  State.1:> 

So,  also,  it  is  held  that  the  proper  petition  and  bond  having 
-been  filed,  a  case  is  considered  removed  even  though  the  state  court 
may  refuse  to  make  an  order  of  removal,  and  may  in  fact  proceed 
with  the  trial  of  the  cause.10  In  such  cases  the  defendant  may,  if 
he  choose,  defend  the  case  in  the  state  court,  and  after  final  judg- 
ment obtain  a  writ  of  error  from  the  United  States  Supreme 
Court,  and  in  so  doing  he  does  not  forfeit  his  right  to  defend  in 
the  lower  federal  court.  The  circuit  court  can  issue  a  writ  of 
certiorari  to  the  state  court  demanding  a  copy  of  the  record  in 
case  and  the  clerk  refusing  to  furnish  it  becomes  liable  under  a 
federal  act  to  fine  or  imprisonment.21 

19  Hyde  v.  Stone  (20  How.  170;  15  L.  ed.  874)  ;  Smyth  v.  Ames  (169  U.  S. 
466;  is  Sup.  Ct.  Rep.  418;  42  L.  ed.  S19)  ;  Mercer  Co.  v.  Cowles  (7  Wall. 
llfr;  19  L.  ed.  86)  ;  Lincoln  Co.  v.  Liming  (133  U.  S.  529;  10  Sup.  Ct.  Rep. 
303:  33  L.  ed.  7G6)  ;  Chicot  Co.  v.  Sherwood  (148  U.  S.  529;  13  Sup.  Ct. 
Rep.  695;  37  L.  ed.  546)  ;  Barrow  S.  S.  Co.  v.  Kane  (170  U.  S.  100;  18 
Sup.  Ct.  Rep.  526;  42  L.  ed.  964). 

20 Home  L.  Insurance  Co.  v.  Dunn  (19  Wall.  214:  22  L.  ed.  68)  ;  Marshall 
v.  Holmes  (141  U.  S.  589;  12  Sup.  Ct.  Rep.  62;  35  L.  ed.  870)  and  cases 
there  cited. 

2i  Act  of  Mch.  8,  1875.  Whether  Congress  has  the  power  thus  to  punish 
the  refusal  of  the  state  official  to  perform  this  duty  has  not  received  judicial 
determination.  If,  however,  we  judge  by  analog}'  from  the  decision  in  Ex 
pnrfr  Siebold  (100  V.  S.  371;  25  L.  ed.  717),  and  if  the  act  required  is  a 
purely  ministerial  one,  Congress  has  the  power.  In  E.r  parte  Yinjin'a  ^  100 
I".  S.  188  :  2.">  L.  ed.  670)  a  judjre  of  a  Virginia  court  had  been  indicted  for 
a  violation  of  the  federal  Civil  Rights  Act  of  1S75  in  tliat  he  had  excluded 
negroes  from  grand  and  petit  juries.  The  selection  of  jurors  the  majority 
of  the  court  declared  to  be  a  purely  ministerial  act,  and,  as  to  the  fact 
that  the  accused  was  a  state  official,  said:  "We  do  not  perceive  how  holding 
an  office  under  a  State  and  claiming  to  act  for  the  state  can  relieve  the 
holder  from  obligation  to  obey  the  Constitution  of  the  United  States,  or 
to  take  away  the  power  of  Congress  to  punish  his  disobedience."  Justice  Field, 
in  a  dissenting  opinion  concurred  in  by  Justice  Clifford,  strongly  urged  that 
tlu»  act  of  1875  was  unconstitutional  in  so  far  as  it  attempted  to  govern 
the    selection  of    jurors    in   state   courts.      He   argued   that   the    selection   of 


150  United  States  Constitutional  Law. 

In  the  recently-  decided  case  of  W.  U.  Telegraph  Co.  v.  Kansas22 
the  court  takes  a  position  which  it  is  somewhat  difficult  to  har- 
monize with  that  assumed  in  the  insurance  cases.  In  this  case  the 
court  held  unconstitutional  as  an  interference  with  interstate 
^  commerce  a  state  law  exacting  from  a  foreign  telegraph  corpora- 
tion, as  a  condition  of  being  permitted  to  continue  to  do  a  local 
business  within  the  State,  a  charter  fee  of  a  given  per  cent  of  its 
entire  authorized  capital  stock.  The  court  declare:  "The  vital 
difference  between  the  Prewitt  case  and  the  one  now  before  us 
is  that  the  business  of  the  insurance  company,  involved  in  the 
former  case,  was  not,  as  this  court  has  often  adjudged,  interstate 
commerce,  while  the  business  of  the  telegraph  company  was  pri- 
marily and  mainly  that  of  interstate  commerce."  This  is  true 
enough,  but  the  essential  fact  still  remains  that  the  Prewitt  case 
permitted  the  State  to  exact  of  the  foreign  corporation  as  a  con- 
dition to  its  being  permitted  to  do  business  within  the  State  that 
it  should  forego  the  exercise  of  a  federal  constitutional  right, 
whereas,  in  the  later  case  it  was  held  that  the  State  might  not  as 
a  condition  impose  burdens  upon  the  exercise  by  the  foreign  corpo- 
ration of  federal  right,  that  of  carrying  on  interstate  commerce, 
which  can  scarcely  be  said  to  be  a  more  important  privilege  than 
that  involved  in  the  Prewitt  case.  It  would  seem,  therefore,  that 
the  suggestion  made  by  Justice  White  in  his  concurring  opinion  in 
the  later  case  was  a  stronger  one,  namely,  that  the  company  having 
been  permitted  to  enter  the  State  and  construct  its  plant  there, 
the  onerous  conditions  attempted  to  be  imposed  by  the  State  as 
a  condition  to  its  remaining  there  were  confiscatory  and,  there- 
fore, wanting  in  due  process  of  law. 

jurors  is  a  judicial  and  not  a  merely  ministerial  act    (quoting  Kentucky  v. 
Dennison),  and  that  Congress  had  no  authority  over  judicial  officers  of  the 
States    in   discharge   of  their   duties   under   State   laws.      For   a   fuller   dis- 
cussion of  this  case  see  post,  p.  189. 
22  30  Sup.  Ct.  Rep.  190. 


CHAPTER  X. 

THE  FEDERAL  CONTROL  OF  THE  FORM  OF  STATE  GOVERNMENTS. 

§  75.  State  Autonomy. 

In  the  foregoing  pages  the  sovereignty  of  the  United  States  aa 
opposed  to,  and  inconsistent  with,  the  continued  sovereignty  of  its 
individual  commonwealth  members  has  been  sufficiently  declared. 
Whatever  doubt  there  may  have  been  upon  this  point  before  the 
Civil  War,  the  result  of  that  gigantic  struggle  has  left  no  room 
for  disagreement  since,  and  the  subsequent  unequivocal  assertions 
of  the  federal  courts  have  simply  registered  conclusions  that  no 
one  could  rationally  question.  Starting,  then,  from  this  funda- 
mental fact  that,  looking  at  the  matter  from  a  purely  legal  view- 
point, the  individual  Commonwealths  constitute  self-governing 
but  politically  subordinate  portions  of  the  United  States,  we 
shall  now  proceed  to  consider  the  degree  of  autonomy  secured  them 
under  the  federal  Constitution.  This  subject  we  may  conveniently 
divide  into  two  parts.  First,  we  may  examine  the  degree  of  con- 
trol that  the  Federal  Government  may  constitutionally  exercise 
over  the  form  of  government  that  the  several  States  may  establish 
for  themselves;  and,  secondly,  the  extent  to  which  the  General 
Government  may  supervise  or  control  the  exercise  by  the  States 
of  those  powers  that  are  reserved  to  them.  First,  then,  as  to  the 
control  that  may  be  constitutionally  exercised  by  the  United 
States  over  the  forms  of  government  of  its  constituent  units. 

Speaking  generally  it  may  be  said  that,  providing  its  govern- 
ment be  republican  in  form,  each  State  of  the  Union  may  establish 
such  governmental  organs  as  it  sees  fit,  and  apportion  among  them 
its  executive,  legislative  and  judicial  powers  according  to  its  own 
judgment  as  to  what  is  expedient  and  proper. 

§  76.  Republican  Form  of  Government  Defined. 

The  federal  Constitution  provides  that  "  The  United  States 
shall  guarantee  to  every  State  in  this  Union  a  republican  form 

[151] 


152  United  States  Constitutional  Law. 

of  government,  and  protect  each  of  them  against  invasion;  and, 
on  application  of  the  legislature,  or  of  the  executive  (when  the 
legislature  cannot  be  convened)  against  domestic  violence."' 1 

In  form,  the*  first  clause  of  this  section  would  appear  to  he  for 
the  benefit  of  the  States  and  to  impose  a  duty  upon  the  Federal 
Government,  and  such  undoubtedly  would  be  its  effect  should  a 
foreign  power  attempt  to  impose  a  government  of  any  sort  what- 
ever upon  the  people  of  one  of  the  States  against  their  will;  or 
should  a  domestic  revolution  result  in  the  establishment  in  power 
of  a  government  not  sanctioned  by  law  or  not  freely  agreed  to  by 
the  electorate.  In  fact,  however,  as  we  have  already  seen,  and 
as  will  presently  be  more  particularly  spoken  of,  this  clause  was 
so  interpreted  during  reconstruction  times  as  to  give  to  the  Fed- 
eral Government  for  several  years  an  almost  unlimited  power  of 
control  of  the  domestic  affairs  of  those  States  that  had  been  in 
rebellion  against  its  authority. 

It  will  be  noticed  that  the  Constitution  does  not  itself  define  the 
term  "  republican  form  of  government."  It  has,  however,  always 
been  an  accepted  rule  of  construction  that  the  technical  and  special 
terms  used  in  the  Constitution  are  to  be  given  that  meaning  which 
they  had  at  the  time  that  instrument  was  framed.  This  is  but 
reasonable,  for,  in  default  of  anything  to  the  contrary,  those  who 
drafted  the  Constitution  are  to  be  presumed  to  have  intended  the 
words  which  they  used  to  have  that  meaning  they  knew  them  to 
have.  For  a  definition,  then,  of  "  republican  government  "  we 
must  discover  what  in  17ST  such  a  political  form  was  considered 
to  be.  Certainly  we  may  say  that  the  governments  of  the  thirteen 
original  States  as  they  existed  at  the  time  the  Constitution  was 
drafted  must  have  been  considered  as  illustrating  the  republican 
type.  Furthermore,  the  Constitutions  of  all  those  States  which 
have  been  admitted  to  the  Union  since  1787  must  be  regarded  as 
having  been  impliedly  declared  republican  by  Congress  at  the 
time  of  the  giving  of  its  assent  to  their  entrance  into  the  Union. 

The  late  Judge  Cooley,  in  his  Principles  of  Constitutional  Lair,2 
has  perhaps  defined  the  term  a3  satisfactorily  as  anyone.     "  By  a 

i  Art.  IV,  Sec.  4. 
2  Chapter  XI. 


Federal  Control  of  Form  of  State  Governments.     153 

republican  form  of  government,"  he  says,  "  is  understood  a  gov- 
ernment by  representatives  chosen  by  the  people ;  and  it  contrasts 
on  the  one  side  with  a  democracy,  in  which  the  people  or  com- 
munity as  an  organized  whole  wield  the  sovereign  powers  of  gov- 
ernment, and,  on  the  other  side,  with  the  rule  of  one  man  as 
King,  Emperor,  Czar,  or  Sultan,  or  with  that  of  one  class  of  men, 
as  an  aristocracy."  "  In  strictness,"  Judge  Cooley  goes  on  to  say, 
"  a  republican  government  is  by  no  means  inconsistent  with 
monarchical  forms,  for  a  King  may  be  merely  an  hereditary  or 
elective  executive  while  the  powers  of  legislation  are  left  exclu- 
sively to  a  representative  body  freely  chosen  by  the  people.  It  is 
to  be  observed,  however,  that  it  is  a  republican  form  of  govern- 
ment that  is  to  be  guaranteed ;  and  in  the  light  of  the  undoubted 
fact  that  by  the  Kevolution  it  was  expected  and  intended  to  throw 
off  monarchical  and  aristocratic  forms,  there  can  be  no  question 
but  that  by  a  republican  form  of  government  was  intended  a 
government  in  which  not  only  would  the  people's  representatives 
make  the  laws,  and  their  agents  administer  them,  but  the  people 
would  also,  directly  or  indirectly,  choose  the  executive.  But  it 
would  by  no  means  follow  that  the  whole  body  of  people,  or  even 
the  whole  body  of  adult  and  competent  persons,  would  be  admitted 
to  political  privileges ;  and  in  any  republican  .State  the  law  must 
determine  the  qualifications  for  admission  to  the  elective 
franchise." 

In  United  States  v.  South  Carolina,3  a  case  decided  in  1905, 
an  obiter  suggestion  was  made  by  the  court  in  its  majority  opinion 
that  a  State  by  assuming  the  control  of  the  manufacture  and  dis- 
tribution of  certain  commodities,  and,  especially,  by  acquiring 
and  undertaking  the  management  of  public  utilities  might  thereby 
lose  its  republican  form  of  government.  To  the  suggestions  thus 
made  no  weight  can  be  given.  Whether  or  not  a  government  is 
republican  in  form  depends  not  upon  the  sphere  of  its  activities, 
but  upon  the  manner  in  which  its  functionaries  are  selected,  and 
the  degree  of  their  legal  responsibility  to  the  people*  Thus  there 
would  be  no  difficulty  in  the  most  socialistic  of  States  having  a 

3  199  U.  S.  437;  26  Sup.  Ct.  Rep.  110;  50  L.  ed.  261. 


154  United  States  Constitutional  Law. 

government  of  the  purest  republican  type.  This  suggestion  to  the 
contrary  by  the  Supreme  Court  is  the  first-  that  the  writer  has 
seen. 

§  77.    The  Constitutionality  of  Referendum  Laws. 

In  the  courts  of  the  States,  general  direct  legislation  (referen- 
dum) laws  were  in  a  few  early  cases  held  unconstitutional  on  the 
ground  that  their  effect  is  to  establish  a  democratic  in  place  of  a 
republican  —  that  is,  representative  —  form  of  government.  Thus, 
for  example,  in  Rice  v.  Foster4  the  court  of  Delaware  declared : 
"Although  the  people  have  the  power,  in  conformity  with  its  pro- 
visions, to  alter  the  Constitution,  under  no  circumstances  can  they, 
so  long  as  the  Constitution  of  the  United  States  remains  the  para- 
mount law  of  the  land,  establish  a  democracy  or  any  other  than 
a  republican  form  of  government."  And  this,  the  court  went  on 
to  declare,  would  in  effect  be  done,  should  the  electorate  be  given 
a  direct  legislative  power.5 

In  addition  to  being  in  violation  of  the  federal  Constitution, 
direct  legislation  laws  of  a  general  character  have  frequently  been 
held  void  as  in  violation  of  the  state  Constitutions  in  that  they 
attempt  to  delegate  to  the  people  that  law-making  power  which 
has  been  intrusted  to  the  legislature.  In  answer  to  the  point  that 
the  law-making  power  was  not  thus  transferred,  but  simply  the 
operation  of  the  statutes  in  question  made  dependent  upon  the 
happening  of  a  particular  event,  namely,  the  approving  vote  of 
the  people,  the  court  of  !New  York,  in  Barto  v.  Himrod,6  said: 
"  It  is  not  denied  that  a  valid  statute  may  be  passed  to  take  effect 
upon  the  happening  of  some  future  event,  certain  or  uncertain. 
But  such  a  statute,  when  it  comes  from  the  hand  of  the  legislature, 
must  be  a  law  in  prcesenti  to  take  effect  in  futuro.  .  .  .  The 
event  or  change  of  circumstances  on  which  a  law  may  be  made  to 

•  4  Harr.  479. 

5  This  case  involved  only  a  local  option  law.  Its  reasoning,  however,  applies, 
and  has  continued  to  be  applied  to  general  laws.  As  to  local  option  laws, 
however,  and  laws  establishing  local  governments  and  equipping  them  with 
adequate  powers,  the  case  may  be  said  to  have  been  overruled. 

«4  Seld.  483. 


Fedekal  Coxtkol  of  Fokm  of  State  Governments.     155 

take  effect  must  be  such  as  in  the  judgment  of  the  legislature 
affects  the  question  of  the  expediency  of  the  law;  an  event  on 
which  the  expediency  of  the  law  in  the  judgment  of  the  lawmakers 
depends.  On  this  question  of  expediency  the  legislature  must 
exercise  its  own  judgment  definitely  and  finally.  .  .  .  But  in 
the  present  case  no  such  event  or  change  of  circumstances  affect- 
ing the  expediency  of  the  law  was  expected  to  happen.  The 
wisdom  or  expediency  of  the  free  school  law,  abstractly  considered, 
did  not  depend  on  a  vote  of  the  people.  If  it  was  unwise  or  in- 
expedient before  that  vote  was  taken,  it  was  equally  so  afterward. 
The  event  on  which  the  act  was  made  to  take  effect  was  nothing 
else  than  the  vote  of  the  people  on  the  identical  question  which 
the  Constitution  makes  it  the  duty  of  the  legislature  itself  to 
decide.  .  .  .  The  government  of  the  State  is  democratic,  and 
it  is  a  representative  democracy,  and  in  passing  general  laws,  the 
people  act  only  through  their  representatives  in  the  legislature."7 

7  While,  as  indicated,  direct  legislation  laws  of  a  general  character  have 
at  times  been  held  unconstitutional,  special  referendal,  or  local  option,  laws, 
have  been  held  valid,  the  point  being  taken,  among  others,  that  at  the 
time  the  federal  and  state  Constitutions  were  adopted,  measures  of  this 
character  were  generally  recognized  as  proper,  and  construed  to  provide  for 
delegation  of  local  governing,  rather  than  legislative,  powers.  Thus  Cooley, 
summing  up  the  argument  upon  this  point,  says:  "It  has  already  been 
seen  that  the  legislature  cannot  delegate  its  power  to  make  laws;  but 
fundamental  as  this  maxim  is,  it  is  so  qualified  by  the  customs  of  our  race, 
and  by  other  maxims  which  regard  local  government,  that  the  right  of 
the  legislature,  in  the  absence  of  authorization  or  prohibition,  to  create  towns 
and  other  inferior  municipal  organizations,  and  to  confer  upon  them  the 
powers  of  local  government,  and  especially  of  local  taxation  and  police  regu- 
lation [liquor  laws,  etc.]  usual  with  such  corporations,  would  pass  unchal- 
lenged. The  legislature  in  these  cases  is  not  regarded  as  delegating  its  au- 
thority, because  the  regulation  of  such  local  affairs  as  are  commonly  left 
to  local  boards  and  officers  is  not  understood  to  belong  properly  to  the 
State,  and  when  it  interferes,  as  sometimes  it  must,  to  restrain  and  control 
the  local  action,  there  should  be  reasons  of  state  policy  or  dangers  of  local 
abuse  to  warrant  the  interposition."  Constitutional  Limitations,  7th  ed., 
p.  264.  In  the  earlier  cases  (Wales  v.  Belcher,  3  Pick.  508;  Godden  v.  Crump, 
8  Leigh,  120;  Burgess  v.  Pue,  2  Gill,  11)  general  referendal  laws  were 
sustained,  but  since  the  decision  of  the  Delaware  court  in  1847  (Rice  v. 
Foster,  4  Harr.  479)  the  general  practice,  as  indicated  in  the  text,  ha8 
been  to  hold  them  void  as  a  delegation  of  legislative  power. 


156  United  States  Constitutional  Law. 

§  78.  Dorr's  Rebellion. 

The  first  instance  in  which,  the  Federal  Government  was 
called  upon  to  construe  this  guaranty  clause  was  in  connection 
with  Dorr's  Rebellion  in  .Rhode  Island  in  1341.  The  salient  facts 
of  this  incident  were  these.  The  Constitution  under  which  the 
people  of  Rhode  Island  had  lived  since  the  separation  from  Eng- 
land provided  for  a  very  limited  suffrage.  With  the  development 
of  more  democratic  ideas  this  condition  of  affairs  became  very  un- 
satisfactory to  those  who  were  thus  denied  the  right  to  vote.  Xn- 
merous  attempts  were  made  to  have  the  Constitution  amended,  but 
these  were  always  defeated  by  the  small  oligarchy  of  legal  voters 
who  did  not  wish  to  share  their  special  privileges  with  others. 
Finally,  in  1841,  mass  meetings  of  the  discontended  were  held,  and, 
without  any  instruction  or  permission  from  the  existing  govern- 
ment, the  citizens  were  directed  to  elect,  by  a  universal  manhood 
suffrage,  delegates  to  a  constitutional  convention.  This  was  done, 
and  at  that  convention  a  Constitution  was  framed  that  later  was 
adopted  by  a  clear  majority  of  the  adult  male  resident  citizens  of 
the  State.  Thereupon,  the  convention,  meeting  again,  declared: 
"  Whereas,  by  return  of  the  votes  upon  the  Constitution,  it  satis- 
factorily appears  that  the.  citizens  of  this  State,  in  their  original 
sovereign  capacity,  have  ratified  and  adopted  said  Constitution  by 
•a  large  majority;  and  the  will  of  the  people,  thus  decisively  known, 
ought  to  be  implicitly  obeyed  and  faithfully  executed:  We  do 
therefore  resolve  and  declare  that  said  Constitution  rightfully 
ought  to  be,  and  is,  paramount  law  and  Constitution  of  the  State 
of  Rhode  Island  and  Providence  Plantations,  and  we  further  re- 
solve and  declare  for  ourselves  and  in  behalf  of  the  people  whom 
Ave  represent,  that  we  will  establish  said  Constitution  and  sustain 
and  defend  the  same  by  all  necessary  means."  Attempts  were 
made  to  put  into  operation  the  government  provided  for  in  the 
instrument  thus  declared  in  force,  Dorr  being  elected  Governor 
under  it. 

All  of  the  above  acts,  it  will  be  observed,  were  unsanctioned  by 
any  law  of  the  old  de  jure  government.  Upon  an  appeal  being 
made  by  that  government  to  the  Federal  Government  for  aid,  the 
President  of  the  United  States  recognized  that  government  as  the 


Federal  Control  or  Foem  of  State  Governments.      l-"7 

de  jure  government  of  the  State  and  took  steps  to  extend  the  aid 
that  wiui  requested.  By  this  federal  executive  action  two  im- 
portant facts  were,  established  with  reference  to  the  i%  guaranty  " 
clause  of  the  federal  Constitution.  The  first  of  these  was  that, 
according  to  this  clause,  the  Federal  Government  was  obligated  to 
protect  the  several  States  not  only  against  the  attempts  of  foreign 
powers  to  impose  upon  them  governments  not  of  their  own  choos- 
ing, but  against  revolutionary  action  on  the  part  of  their  own 
citizens.  The  second  was  that  it  was  thus  decided  that  it  is  not 
a  violation  of  the  provision  that  a  state  government  shall  be  re- 
publican in  form  that  it  rests  upon  the  legal  will  of  a  minority  of 
its  adult  male  citizens.  In  effect  it  was  determined  that  the  old 
government  of  Rhode  Island,  being  accepted  as  republican  in  form 
at  the  time  that  the  State  became  a  member  of  the  Union,  it  could 
not  be  changed  by  any  extra-legal  means  against  the  desire  of  those 
who  by  the  old  instrument  were  given  the  sole  power  of  expressing 
the  legal  will  of  the  State.  This  last  clause  "  against  the  desire 
of  those  who  by  the  old  instrument  were  given  the  sole  power  of 
expressing  the  legal  will  of  the  -State/'  is  advisedly  added,  for,  as 
repeated  instances  have  shown,  the  Federal  Government  has  not 
felt  itself  obligated  under  the  guaranty  clause  to  see  to  it  that  none 
of  the  state  Constitutions  are  ever  amended  or  replaced  by  new 
instruments  except  in  strict  accordance  with  the  provisions  gov- 
erning constitutional  changes  existing  at  the  time  the  changes  are 
made.  When  such  changes,  even  though  brought  about  in  a  man- 
ner not  formally  constitutional,  have  been  accepted  as  valid  by  the 
old  governments,  the  Federal  Government  has  not  felt  itself  obli- 
gated to  interfere.  But  when,  as  was  the  case  in  Rhode  Island, 
the  revolutionary  change  is  resisted  by  those  exercising  authority 
under  the  old  instrument  of  government,  the  Federal  Government, 
upon  appeal  to  it  for  a-^istancc.  will  almost  surely  consider  itself 
called  upon  to  recognize  and  support  the  old  government. 


158  United  States  Constitutional  Law. 

§  79.  Luther  v.  Borden. 

The  case  of  Luther  v.  Borden,8  decided  by  the  Supreme  Court 
in  1845,  arose  out  of  Dorr's  Rebellion.  Borden,  acting  under 
authority  of  the  old  government  of  Rhode  Island,  had  broken  into 
the  house  of  Luther,  who  was  at  the  time  engaged  iu  an  attempt  to 
establish  the  new  government  provided  for  by  the  Constitution 
that  had  been  adopted  in  the  popular,  extra-constitutional  manner 
spoken  of  above.  Upon  being  sued  in  trespass  by  Luther,  Borden 
justified  himself  by  the  plea  that  he  was  acting  under  the  authority 
of  the  legal  government  of  the  State.  Luther,  upon  his  side,  de- 
nied the  de  jure  character  of  that  government,  and,  therefore,  its 
legal  competence  to  empower  Borden  to  exercise  the  authority  he 
had  exercised. 

Upon  behalf  of  Luther  it  was  argued  "  that,  by  the  fundamental 
principle  of  government  and  of  the  sovereignty  of  the  people  ac- 
knowledged and  acted  upon  in  the  United  States,  and  the  several 
States  thereof,  at  least  ever  since  the  Declaration  of  Independence 
in  1776,  the  Constitution  and  frame  of  government  prepared, 
adopted,  and  established  as  above  set  forth,  was,  and  became 
thereby,  the  supreme  fundamental  law  of  the  State  of  Rhode 
Island,  and  was  in  full  force  and  effect,  as  such,  when  the  tres- 
pass alleged  in  the  plaintiff's  writ  was  committed  by  the  defend- 
ants. That  this  conclusion  also  follows  from  one  of  the  foregoing 
fundamental  principles  of  the  American  system  of  government, 
which  is,  that  government  is  instituted  by  the  people,  and  for  the 
benefit,  protection  and  security  of  the  people,  nation,  or  com- 
munity. And  that  when  any  government  shall  be  found  inade- 
quate or  contrary  to  these  purposes,  a  majority  of  the  community 
hath  an  indubitable,  inalienable  right  to  reform,  alter,  abolish  the 
same,  in  such  a  manner  as  shall  be  judged  most  conducive  to 
the  public  weal."9 

.,  , .       _ .  -    . ■  ■  —  ■-,...  — 

8  7  How.  1;   12  L.  ed.  581. 

»  In  support  of  this  position,  the  following  propositions  were  urged : 

1.  "  That  the  sovereignty  of  the  people  is  supreme,  and  may  act  in  forming 
government  without  the  assent  of  the  existing  government. 

2.  That  the  people  are  the  sole  judges  of  the  form  of  government  best 
calculated  to  promote  their  9afety  and  happiness. 


Federal  Control  of  Form  of  State  Governments.     159 

In  behalf  of  Borden,  the  defendant  in  error,  Daniel  Webster, 
who  was  one  of  the  counsel,  argued  that,  granting  that  the  people 
are  the  source  of  political  power,  the  American  principle  is  that 
they  can  exercise  this  power  only  through  their  constituted  repre- 
sentatives, and  through  the  votes  of  properly  qualified  electors. 
"  The  right  to  choose  a  representative,"  he  declared,  "  is  every 
man's  portion  of  sovereign  power.  .Suffrage  is  a  delegation  of 
political  power  to  some  individual.  Hence  the  right  must  be 
guarded  and  protected  against  force  or  fraud.  That  is  one  prin- 
ciple. Another  is,  that  the  qualification  which  entitles  a  man  to 
vote  must  be  prescribed  by  previous  laws,  directing  how  it  is  to  be 
exercised  and  also  that  the  results  shall  be  certified  to  some  central 
power  so  that  the  vote  may  tell.  We  know  no  other  principle.  If 
you  go  beyond  these,  you  go  wide  of  the  American  track.  .  .  . 
Our  American  mode  of  government  does  not  draw  any  power  from 
tumultuous  assemblages." 

The  question  as  to  which  of  the  two  governments  was  at  that 
time  the  legal  government  of  the  State  thus  seemed  squarely  pre- 
sented to  the  court.  That  tribunal,  however,  did  not  feel  itself 
obliged  to  pass  upon  the  point,  holding  that  the  power  to  deter- 
mine such  a  matter  had  been  given  by  the  Constitution  to  Con- 
gress, and  by  that  body  had  been  handed  over,  to  the  extent  at 
least  of  determining  when  the  Federal  Government  should  inter- 

3.  That  as  the  sovereign  power,  they  have  the  right  to  adopt  such  form  of 
government. 

4.  That  the  right  to  adopt  necessarily  includes  the  right  to  abolish,  to 
reform,  and  to  alter  any  existing  form  of  government,  and  to  substitute 
in  its  stead  any  other  that  they  may  judge  better  adapted  to  the  purposes 
intended. 

5.  That  if  such  a  right  exists  at  all,  it  exists  in  the  States  under  the 
Union  not  as  a  right  of  force,  but  a  right  of  sovereignty,  and  that  these 
who  oppose  its  peaceful  exercise,  and  not  those  who  support  it,  are  culpable. 

6.  That  the  exercise  of  this  right,  which  is  a  right  original,  sovereign, 
and  supreme,  and  not  derived  from  any  other  human  authority,  may  be, 
ami  must  be,  effected  in  such  a  way  and  manner  as  the  people  may  for 
themselves  determine. 

7.  And  more  especially  is  this  true  in  the  case  of  the  then  subsisting  govern- 
ment of  Rhode  Island,  which  derived  no  power  from  the  charter  or  from 
the  people  to  alter  or  amend  the  frame  of  government,  or  to  change  the 
basis  of  representation,  or  even  to  propose  initiatory  measures  to  that  end." 


ICO  United  States  Constitutional  Law. 

fere,  to  the  President.  In  the  case  at  bar  the  President  had 
recognized  the  legality  of  the  old  government  and  the  propriety 
of  this  decision  the  court  declared  it  could  not  consider.30 

"After  the  President  has  acted,  and  has  called  out  the  militia,"' 
continued  the  eourt,  "  is  a  circuit  court  of  the  United  States  au- 
thorized to  inquire  whether  his  decision  was  right?  Could  the 
court,  while  the  parties  were  actually  contending  in  arms  for  the 
possession  of  the  government,  call  witnesses  before  it  and  inquire 
which  party  represented  a  majority  of  the  people  \  If  it  could, 
then  it  would  become  the  duty  of  the  court  (provided  it  came  to 
the  conclusion  that  the  President  had  decided  incorrectly)  to  dis- 
charge those  who  were  arrested  or  detained  by  the  troops  in  the 
service  of  the  United  States  or  the  government  which  the  Presi- 
dent is  endeavoring  to  maintain.  If  the  judicial  power  extends 
so  far,  the  guarantee  contained  in  the  Constitution  of  the  United 
States  is  a  guarantee  of  anarchy,  and  not  of  order.  Yet  if  this 
right  does  not  reside  in  the  courts  when  the  condiet  is  raging,  if 
the  judicial  is  at  that  time  bound  to  follow  the  decision  of  the 
political,  it  must  be  equally  bound  when  the  contest  is  over.     It 

10  "Under  this  article  of  the  Constitution."  said  the  court,  speaking  through 
Taney,  C.  J.,  "  it  rests  with  Congress  to  decide  what  government  is  the 
established  one  in  the  State.  Fcr  as  the  United  States  guarantees  to  each 
State  a  republican  government,  Congress  must  necessarily  decide  what  govern- 
ment is  established  in  the  State  before  it  can  be  determined  whether  it  is 
republican  or  not.  And  when  the  Senators  and  Representatives  of  a  State 
are  admitted  into  the  councils  of  the  Union,  the  authority  of  the  government 
under  which  they  are  appointed,  as  well  as  its  republican  character,  is 
recognized  by  the  proper  constitutional  authority.  And  its  decision  is  bind- 
ing on  every  other  department  of  the  government,  and  could  not  be  questioned 
in  a  judicial  tribunal.  .  .  .  So,  too,  as  relates  to  the  clause  in  the  above- 
mentioned  article  of  the  Constitution,  providing  for  cases  of  domestic  violence. 
It  rested  with  Congress,  too,  to  determine  upon  the  means  proper  to  be 
adopted  to  fulfil  this  guarantee.  They  might,  if  they  had  deemed  it  most 
advisable  to  do  so,  have  placed  it  in  the  power  of  a  court  to  decide  when 
the  contingency  had  happened  which  required  the  Federal  Government  t<> 
interfere.  But  Congress  thought  otherwise.  ...  By  this  act  (Feb.  28,  1795) 
the  power  of  deciding  whether  the  exigency  had  arisen  upon  which  the 
government  of  the  United  States  is  bound  to  interfere,  is  given  to  the 
President.  .  .  .  And  the  President  must,  of  necessity,  decide  which  is 
the  government,  and  which  party  is  unlawfully  arrayed  against  it,  before 
he  can  perform  the  duty  imposed  upon  him  by  act  of  Congress." 


Federal  Control  of  Form  of  State  Governments.     161 

cannot,  when  peace  is  restored,  punish  as  oifenses  and  crimes  the 
acts  which  it  before  recognized,  and  was  bound  to  recognize,  as 
lawful."  As  to  the  point  that  a  discretionary  power  thus  placed 
in  the  hands  of  the  President  might  be  abused,  the  court  said: 
"  All  power  may  be  abused  if  placed  in  unworthy  hands.  But  it 
would  be  difficult  to  point  out  any  other  hands  in  which  this 
power  would  be  more  safe,  and  at  the  same  time  equally  effectual. 
...  At  all  events,  it  is  conferred  upon  him  by  the  Constitution 
and  laws  of  the  United  States,  and  must  therefore  be  respected, 
and  enforced  in  its  judicial  tribunals." 

As  regards  the  point  that  had  been  raised  that  by  the  declaration 
of  martial  law  and  the  use  of  military  force,  the  old  government 
of  Rhode  Island  had  ceased  to  be  a  republican  one,  the  court  said : 
"  Unquestionably  a  military  government,  established  as  the  per- 
manent government  of  the  State,  would  not  be  a  republican  govern- 
ment, and  it  would  be  the  duty  of  Congress  to  overthrow  it.  But 
the  law  of  Rhode  Island  contemplated  no  such  government.  It 
was  intended  merely  for  the  crisis,  and  to  meet  the  peril  in  which 
the  existing  government  was  placed  by  the  armed  resistance  to  its 
authority.  It  was  so  understood  and  construed  by  the  state  au- 
thorities. And,  unquestionably,  a  State  may  use  its  military 
authority  to  put  down  an  armed  insurrection,  too  strong  to  be  con- 
trolled by  the  civil  authority.  The  power  is  essential  to  the  ex- 
istence of  every  government,  essential  to  the  preservation  of  order 
and  free  institutions,  and  is  as  necessary  to  the  States  of  thi3 
Union  as  to  any  other  government."11 

§  80.  The  Reconstruction  of  Southern  States  after  the  Civil  War. 
Acting  under  the  authority  assumed  to  be  given  it  by  the  guar- 
anty clause,  Congress,  at  the  conclusion  of  the  Civil  War,  assumed 
an  almost  complete  control  over  the  reconstruction  of  governments 
in  those  States.  There  can  be  no  question,  however,  but  that  in 
doing  so  an  interpretation  was  given  to  that  clause  which  it  is 
difficult  to  justify.     Practical  exigencies  may  have  necessitated 

"*  Fnr  a  fuller  discussion  of  martial  law,  and  its  limitations,  see  post, 
Chapter  LXII. 

u 


162  United  States  Constitutional  Law. 

the  federal  authority  that  was  exercised,  but  that  violence  was 
done  to  the  meaning  of  this  clause  must  be  admitted.  A  fair  in- 
terpretation of  this  clause  would  have  given  to  the  Federal  Gov- 
ernment at  the  most  nothing  more  than  the  right  to'  assist  the  citi- 
zens of  the  several  States  in  establishing  and  maintaining  govern- 
ments republican  in  form  and  loyal  to  the  Union.  "When  this 
clause  was  discussed  in  the  Constitutional  Convention  of  1787  it 
was  explained  by  one  member  that  its  object  was  "  merely  to 
secure  the  States  against  dangerous  commotions,  insurrections, 
and  rebellions;"  and  Madison,  writing  in  The  Federalist,  said: 
"  It  may  possibly  be  asked  what  need  there  could  be  for  such  a 
precaution,  and  whether  it  may  not  become  a  pretext  for  altera- 
tion in  the  state  governments  without  the  concurrence  of  the 
States  themselves.  These  questions  admit  of  ready  answers.  If 
the  interposition  of  the  General  Government  should  not  be  needed, 
the  provision  for  such  an  event  will  be  a  harmless  superfluity  only 
in  the  Constitution.  But  who  can  say  what  experiments  may  be 
produced  by  the  caprice  of  particular  States,  by  the  ambition  of 
enterprising  leaders,  or  by  the  intrigues  and  influence  of  foreign 
powers  ?  To  the  second  question  it  may  be  answered,  that  if  the 
General  Government  should  interpose  by  virtue  of  this  constitu- 
tional authority,  it  will  of  course  be  bound  to  pursue  the  au- 
thority. But  the  authority  extends  no  further  than  a  guaranty 
of  a  republican  form  of  government,  which  supposes  a  pre-existing 
government  of  the  form  which  is  to  be  guaranteed.  As  long, 
therefore,  as  the  existing  republican  forms  are  continued  by  the 
States,  they  are  guaranteed  by  the  federal  Constitution.  When- 
ever the  States  may  choose  to  substitute  other  republican  forms, 
they  have  a  right  to  do  so,  and  to  claim  the  federal  guaranty  for 
the  latter.  The  only  restriction  imposed  on  them  is,  that  they 
shall  not  exchange  republican  for  anti-republican  Constitutions; 
a  restriction  which,  it  is  presumed,  will  hardly  be  considered  as 
a  grievance."  \ 

Instead,  however,  of  guaranteeing  existing  governments  in  the 
Southern  States,  or  of  assisting  their  citizens  in  establishing  re- 
publican governments,  the  Federal  Government,  in  pursuance  of 


Federal  Control  of  Form  of  State  Governments.  163 

the  various  Reconstruction  Acts  passed  by  Congress,  went  on 
itself  to  assume  the  practical  control  of  the  establishment  of  new 
governments;  and  these  governments  it  termed  republican  in 
form,  though  they  were  imposed  upon  the  States  against  the  will 
of  the  great  bulk  of  their  citizens,  and  were  maintained  in  exist- 
ence by  the  support  that  the  federal  bayonet  was  able  to  give  them. 
Furthermore,  Congress  even  then  refused  to  admit  the  States  to 
a  full  enjoyment  of  constitutional  rights  until  they  had  amended 
their  Constitutions  in  certain  specific  ways,  and  ratified  the 
Fourteenth  and  Fifteenth  Amendments  to  the  federal  Constitu- 
tion. In  so  doing,  not  only  was  violence  done  to  the  guaranty 
clause,  but  the  States  in  question  were  deprived  of  that  equality 
with  the  other  States  of  the  Union  to  which  they  were  constitu- 
tionally entitled. 

In  an  earlier  chapter  it  has  been  pointed  out  that  in  the  famous 
case  of  Texas  v.  White12  the  Supreme  Court  construed  the  "  guar- 
anty "  clause  of  the  United  States  Constitution  to  authorize  Con- 
gress to  establish  and  maintain  governments  in  those  States  which 
had  attempted  secession  from  the  Union.  It  will  be  remembered, 
however,  that  in  that  case  the  court  did  not  feel  itself  called  upon 
to  pass  upon  the  constitutionality  of  any  of  the  particular  pro- 
visions of  the  Reconstruction  Acts  which  were  enacted  by  Congress 
in  the  exercise  of  that  power,  but  was  content  with  satisfying 
itself  that  the  government  which  had  been  established  and  had 
been  in  actual  operation,  had  been  recognized  by  Congress,  and 
was,  as  such,  competent  to  bring  suit  in  behalf  of  the  State  of 
Texas,  which,  it  was  declared,  had  never  been,  despite  its  ordi- 
nance of  secession,  out  of  the  Union.13 

In  "White  v.  Hart14  an  attempt  was  made  to  have  the  Supreme 
Court  hold  void  certain  provisions  of  the  reconstruction  Constitu- 
tion of  Georgia  on  the  ground  that  the  Constitution  had  been 
adopted  under  the  dictation  and  coercion  of  Congress,  and  was 
not  thus,  in  reality,  the  act  of  the  State.  The  Supreme  Court  re- 
plied :     "  Congress  authorized  the  State  to  frame  a  new  Constitu- 

127  Wall.  700;  19  L.  ed.  227. 
13  See  ante,  p.  85.  j 

UJ3  wan.  646;  20  L.  ed.  685. 


164  United  States  Constitutional  Law. 

tion,  and  she  elected  to  proceed  within  the  scope  of  the  authority 
conferred.  The  result  was  submitted  to  Congress  as  a  voluntary 
and  valid  offering,  and  was  so  received  and  so  recognized  in  the 
subsequent  action  of  that  body.  The  State  is  estopped  to  assail 
it  upon  such  an  assumption.  Upon  the  same  grounds  she  might 
deny  the  validity  of  her  ratification  of  the  constitutional  amend- 
ments. The  action  of  Congress  upon  the  subject  cannot  be  in- 
quired into.  The  case  is  clearly  one  in  which  the  judicial  is 
bound  to  follow  the  action  of  the  political  department."  In  short, 
the  court  held  that  whether  or  not  Congress  was  justified  in  re- 
quiring of  the  State  that,  as  a  condition  to  her  again  enjoying 
representation  in  Congress,  she  should  adopt  a  Constitution  con- 
taining certain  provisions,  the  State  had  yielded  and  adopted  a 
Constitution  as  required.  It  was  therefore  her  act,  and  its  pro- 
visions were  valid  as  such.  Had  she  continued  to  refuse  to  accede 
to  the  conditions  imposed  by  Congress,  it  might  ultimately  have 
been  necessary  to  decide  whether  those  conditions  were  constitu- 
tionally requirable.  But  having  yielded  to  them,  the  court  very 
properly  held  that  it  could  not  examine  into  the  motives  or  cir- 
cumstances which  led  the  State  to  do  so. 

§  81.  Restricted   Suffrage   Compatible   with  Republic  Form  of 
Government. 

In  Minor  v.  Happersett15  the  point  was  raised  that  a  state  gov- 
ernment is  not  republican  in  form  in  which  adult  women  are  not 
permitted  to  vote.  As  to  this  the  court  said :  "  The  guaranty  is 
of  a  republican  form  of  government.  !No  particular  government 
is  designated  as  republican,  neither  is  the  exact  form  to  be  guaran- 
teed, in  any  manner  especially  designated.  Here,  as  in  other 
parts  of  the  instrument,  we  are  compelled  to  resort  elsewhere  to 
ascertain  what  was  intended.  The  guaranty  necessarily  implies 
a  duty  on  the  part  of  the  States  themselves  to  provide  such  a  gov- 
ernment. All  the  States  had  governments  when  the  Constitution 
was  adopted.  In  all  the  people  participated  to  some  extent, 
through  their  representatives  elected  in  the  manner  specially  pro- 

15  21  Wall.   162;   22  L.  ed.  627. 


Federal  Control  of  Form  of  State  Governments.     165 

vided.  These  governments  the  Constitution  did  not  change.  They 
were  accepted  precisely  as  they  were,  and  it  is,  therefore,  to  be 
presumed  that  they  were  such  as  it  was  the  duty  of  the  States  to 
provide.  Thus  we  have  unmistakable  evidence  of  what  was  re- 
publican in  form,  within  the  meaning  of  that  term  as  employed 
in  the  Constitution.  As  has  been  seen  [in  the  argument  that  has 
gone  befpre],  all  the  citizens  of  the  States  were  not  invested  with 
the  right  of  suffrage.  In  all,  save  perhaps  New  Jersey,  this  right 
was  only  bestowed  upon  men  and  not  upon  all  of  them.  Under 
these  circumstances  it  is  certainly  now  too  late  to  contend  that  a 
government  is  not  republican,  within  the  meaning  of  this  guar- 
anty in  the  Constitution,  because  women  are  not  made  voters."16 

Precedents  have  established  the  principle  that  where  there  is  a 
dispute  in  a  State  as  to  the  de  jure  character  of  a  particular  organ 
of  its  government,  as,  for  example,  as  to  which  of  two  individuals 
has  been  elected  as  chief  executive,  or  which  of  two  courts  or 
legislatures  is  entitled  to  authority,  the  Federal  Government  will 
not  ordinarily  interfere,  being  governed  by  the  principle  that  each 
state  government  has  a  tribunal  for  the  decision  of  such  contests, 
and  that  the  General  Government  will  consider  itself  bound  by 
the  decision  which  that  tribunal  renders,  just  as  the  federal  courts 
hold  themselves  bound  by  the  decisions  of  the  state  courts  as  to 
the  existence  and,  in  general,  the  interpretation  of  their  respective 
state  statutes.17 

In  two  classes  of  cases,  however,  the  Federal  Government  exer- 
cises the  right  to  decide  which  of  two  contesting  state  officials  or 
organs  is  to  be  recognized  as  the  de  jure  authority.  The  first  of 
these  includes  those  cases  in  which  a  decision  becomes  necessary 
in  order  to  determine  a  matter  of  direct  federal  concern.  Thus, 
for  example,  when  each  of  two  contesting  state  legislatures  select 
and  send  senators  to  Congress,  it  is  necessary  for  the  United  States 
Senate  to  deeide  which  of  the  two  electing  bodies  is  endowed  with 
the  authority  to  act  on  that  behalf  for  the  State.     So,  also,  as  in 

'<>  In  this  case  was  also  negatived  the  assertion  that  to  deny  women  the 
suffrage  is  to  deprive  them  of  a  right  guaranted  to  them  by  the  Fourteenth 
Amendment. 

"See  post.  Chapter  LIT. 


166  United  States  Constitutional  Law. 

the  case  of  Dorr's  Rebellion,  where  federal  aid  is  needed  to  sup- 
press domestic  disorder,  it  is  necessary  for  the  President  or  Con- 
gress to  determine  which  government,  claiming  authority,  it  will 
recognize. 

The  second  class  of  cases  in  which  the  Federal  Government, 
through  its  Supreme  Court,  will  assume  jurisdiction  where  there 
is  dispute  between  parties  as  to  who  is  entitled  to  a  state  office, 
include  those  in  which  there  is  a  question  whether  the  state  laws, 
as  applied  by  the  state  authorities,  have  violated  that  provision 
of  the  Fourteenth  Amendment  which  declares  that  no  State  "  shall 
deprive  any  person  of  life,  liberty,  or  property,  without  due 
process  of  law,"  or  have  violated  the  tenth  section  of  Article  One 
of  the  Constitution  of  the  United  States,  which  declares  that  no 
State  shall  pass  a  law  impairing  the  obligation  of  a  contract. 

§  82.  Public  Office  not  a  Property  or  Contract  Right. 

The  Supreme  Court  of  the  United  States  has  held  in  an  un- 
qualified manner,  that  as  between  a  State  and  an  office-holder, 
there  is  no  contract  right  possessed  by  the  latter  either  to  the 
office  or  to  the  salary  attached  to  it,  and  that,  therefore,  in  the 
absence  of  express  constitutional  provision  otherwise,  his  removal 
from  office  or  the  abolishment  of  the  office  itself  gives  to  him  no 
cause  of  action  against  the  State.  Thus  in  Butler  v.  Pennsyl- 
vania18 after  defining  vested  private  rights  of  property,  the  court 
said :  "  The  contracts  designed  to  be  protected  by  the  tenth  sec- 
tion of  the  first  article  of  that  instrument  are  contracts  by  which 
perfect  rights,  certain  definite,  fixed,  private  rights  of  property, 
are  vested.  These  are  clearly  distinguishable  from  measures  or 
engagements  adopted  or  undertaken  by  the  body  politic  or  state 
government  for  the  benefit  of  all,  and  from  the  necessity  of  the 
case,  and  according  to  universal  understanding,  to  be  varied  or 
discontinued  as  the  public  shall  require.  The  selection  of  officers, 
who  are  nothing  more  than  agents  for  the  effectuating  of  public 
purposes,  is  matter  of  public  convenience  or  necessity,  and  so,  too, 
are  the  periods  for  the  appointment  of  such  agents;  but  neither 

"10  How.  402;  13  L.  ed.  472. 


Federal  Control  of  Form  of  State  Governments.     167 

the  one  nor  the  other  of  these  arrangements  can  constitute  any 
obligation  to  continue  such  agents,  or  to  reappoint  them,  after  the 
measures  which  brought  them  into  being  shall  have  been  found 
useless,  shall  have  been  fulfilled,  or  shall  have  been  abrogated  as 
even  detrimental  to  the  well-being  of  the  public.  The  promised 
compensation  for  services  actually  performed  and  accepted,  dur- 
ing the  continuance  of  the  particular  agency,  may  undoubtedly  be 
claimed,  both  upon  principle  of  compact  and  of  equity;  but  to 
insist  beyond  this  on  the  perpetuation  of  a  public  policy  either 
useless  or  detrimental,  and  upon  a  reward  for  acts  neither  desired 
nor  promised,  would  appear  to  be  neither  reconcilable  with  natural 
justice  nor  with  common  sense.  The  establishment  of  such  a 
principle  would  arrest  necessarily  everything  like  progress  or  im- 
provement in  government ;  or  if  changes  would  be  ventured  upon, 
the  government  would  have  to  become  one  great  pension  establish- 
ment on  which  to  quarter  a  host  of  sinecures.  It  would  especially 
be  difficult,  if  not  impracticable,  in  this  view,  ever  to  remodel  the 
organic  law  of  a  State,  as  constitutional  ordinances  must  be  of 
higher  order  and  more  immutable  than  common  legislative  enact- 
ments, and  there  could  not  exist  conflicting  constitutional  ordi- 
nances under  one  and  the  same  system.  It  follows,  then,  upon 
principle,  that,  in  every  perfect  and  competent  government,  there 
must  exist  a  general  power  to  enact  and  to  repeal  laws;  and  to 
create,  and  change  or  discontinue,  the  agents  designated  for  the 
preservation  of  the  body  politic,  and  for  the  safety  of  the  indi- 
viduals of  the  community.  It  is  true  that  this  power  or  the  ex 
tent  of  its  exercise  may  be  controlled  by  higher  organic  law  or  the 
Constitution  of  the  State,  as  is  the  case  in  some  instances  in  the 
state  Constitutions,  and  is  exemplified  in  the  provision  of  the  fed- 
eral Constitution  relied  on  in  this  case  by  the  plaintiffs  in  error, 
and  in  some  other  clauses  of  the  same  instrument ;  but  where  no 
such  restriction  is  imposed,  the  power  must  rest  in  the  discretion 
of  the  government  alone." 

Again,  summing  up  the  law  on  this  subject,  the  Supreme  Court 
in  Taylor  v.  Beckham19  say:   u  The  decisions  are  numerous  to  the 

i*17S  U.  S.  548;  20  Sup.  Ct.  Rep.  890;  44  L.  ed.  1187. 


168  United  States  Constitutional  Law. 

effect  that  public  offices  are  mere  agencies  or  trusts,  and  not  prop- 
erty as  such.  2sor  are  the  salary  aud  emoluments  property  secured 
by  contract,  but  compensation  for  services  actually  rendered.  Xor 
does  the  fact  that  a  constitution  may  forbid  the  legislature  from 
abolishing  a  public  office  or  diminishing  the  salary  thereof  during 
the  term  of  the  incumbent,  change  its  character  or  make  it  prop- 
erty. True,  the  restrictions  limit  the  power  of  the  legislature  to 
deal  with  the  office,  but  even  such  restrictions  may  be  removed  by 
constitutional  amendment.  In  short,  generally  speaking,  the 
nature  of  the  relation  of  a  public  officer  to  the  public  is  incon- 
sistent either  with  a  property  or  contract  right" 20 

§  83.  Suits  between  Two  or  More  Claimants  to  State  Office. 

When  the  dispute  is  not  one  between  the  State  and  one  of  its 
officers,  bu^  between  two  individuals  each  claiming  the  office  and 
its  emoluments, —  when,  in  other  words,  the  office  itself  is  not  dis- 
turbed nor  the  salary  changed,  the  question  is  a  different  one. 
Then,  it  would  seem,  the  office  has  often  to  be  treated  as  a  piece 
of  property  of  which  the  owner  may  not  be  deprived  without  due 
process  of  law  even  by  the  State  itself.  In  Kennard  v.  Louisiana21 
an  action  in  the  nature  of  quo  warranto  was  brought  against  the 
plaintiff  in  error,  a  justice  of  the  Supreme  Court  of  the  State, 
by  a  Mr.  Morgan,  and  the  decision  of  the  Louisiana  courts  was 
in  his  favor.  Thereupon  Kennard  took  an  appeal  to  the  Supreme 
Court  of  the  Ignited  States  upon  the  ground  that,  through  her 
judiciary,  the  State  had  deprived  him  of  his  office  without  that 
due  process  of  law  which  the  Fourteenth  Amendment  secured  to 

20  It  is  to  be  observed,  however,  that  where  a  State  in  a  fiscal  capacity 
enters  into  contracts  with  private  persons  for  services  to  be  rendered  or 
materials  to  be  furnished,  it  is  to  be  regarded  pro  hac  vice  as  a  private 
person  and  as  bound  accordingly.  "  When  a  State  becomes  a  party  to  a 
contract  as  in  the  case  before  us,  the  same  rules  of  law  are  applied  to 
her  as  to  private  persons  under  like  circumstances.  When  she  or  her 
representatives  are  properly  brought  into  the  forum  of  litigation,  neither 
she  nor  they  can  assert  any  right  or  immunity  as  incident  to  her  political 
sovereignty."  Davis  v.  Gray  (16  Wall.  203;  21  L.  ed.  447).  See  also 
Curran  v.  Arkansas    (15  How.  304;   14  L.  ed.  705). 

2192  U.  S.  480;  23  L.  ed.  478. 


Federal  Control  of  Form  of  State  Governments.  169 

him.  In  its  opinion  the  Supreme  Court  of  the  United  States 
say :  "  The  question  before  us  is,  not  whether  the  courts  below, 
having  jurisdiction  of  the  case  and  the  parries,  have  followed  the 
law,  but  whether  the  law,  if  followed,  would  have  furnished  Ken- 
nard  the  protection  guaranteed  by  the  Constitution.  Irregulari- 
ties and  mere  errors  in  the  proceedings  can  only  be  corrected  in 
the  state  courts.  Our  authority  does  not  extend  beyond  an  ex- 
amination of  the  power  of  the  courts  below  to  proceed  at  all." 
And,  directing-  its  examination  to  this  point,  the  court  found  that 
in  fact  due  process  of  law  had  been  provided  in  the  trial  of  his 
right  to  office  which  he  claimed.  In  thus  assuming  jurisdiction 
of  the  case,  and  in  examining  as  to  whether  in  fact  due  process 
of  law  had  been  had,  it  is  apparent  that  the  Supreme  Court  must 
have  held  that  the  right  to  the  office  in  question  was  a  property 
right  within  the  terms  of  the  provision  of  the  Fourteenth  Amend- 
ment which  declares  that  no  State  shall  deprive  a  person  of  life, 
liberty,  or  property  without  due  process  of  law. 

Again,  in  Foster  v.  Kansas,22  the  federal  court  assumed  juris- 
diction in  a  case  where  the  Supreme  Court  of  Kansas  had  ousted 
tho  plaintiff  in  error  from  office,  the  court  in  its  opinion  saying: 
"As  the  question  of  the  constitutionality  of  the  statute  was 
directly  rawed  by  the  defendant,  and  decided  against  him  by  the 
court,  we  have  jurisdiction  and  the  motion  to  dismiss  must  be 
overruled;"  thus  affirming  the  decision  of  the  state  court  on  the 
ground  that  the  proceedings  showed  due  process  of  law. 

In  Boyd  v.  Nebraska"  the  state  supreme  court  had  ousted  Boyd 
from  the  office  of  governor  and  installed  Thayer  therein.  On 
error  to  the  federal  Supreme  Court,  the  judgment  of  the  state 
Supreme  Court  was  reversed,  Thayer  ousted,  and  Boyd  reinstated 
as  governor  of  the  State,  the  ground  for  this  action  being  that 
in  the  proceedings  by  which  lioyd  had  been  originally  ousted, 
the  state  court  had  incorrectly  decided  that  he  was  not  a  citizen 
of  the  United  States  and  therefore  disqualified  for  office.  In  its 
opinion,  the  court  say :  "A-  I  he  allegation  [  of  citizenship]  .  .  . 
up  a  right  and  privilege  claimed  under  the  laws  of  the  United 

a  112  U.  S.  205:  S  Sup.  Ct.  Rep.  S:  2S  L.  ed.  696. 

23  143  U.  S.  135;   12  Sup.  Ct.  Rep.  375;  36  L.  ed.  103. 


170  United  States  Constitutional  Law. 

States,  this  court  must  determine  for  itself  the  question  of  suffi- 
ciency of  this  allegation,  and  is  not  concluded  by  the  view  taken 
of  that  question  by  the  Supreme  Court  of  Nebraska."  The  state- 
ment that  a  federal  right  or  privilege  was  here  claimed,  would 
not  seem  to  be  correct.  !No  right  or  privilege  attached  to,  or 
growing  out  of  federal  citizenship  was  claimed.  The  judgment 
of  the  state  court  should  have  been  affirmed  irrespective  of  the 
fact  whether  or  not  in  truth  Boyd  was  a  citizen  of  the  United 
States.24 

In  Wilson  v.  !North  Carolina25  the  Supreme  Court  of  the 
United  States  was  again  called  upon  to  determine  whether  the 
plaintiff  in  error  had,  by  being  ousted  from  office,  been  deprived 
of  property  without  due  process  of  law.  In  its  opinion  the  court 
again  affirm  the  doctrine  that  "  the  procedure  provided  by  a  valid 
state  law  for  the  purpose  of  changing  the  incumbent  of  a  state 

2*  In  an  emphatic  dissenting  opinion  Justice  Field  said:  "I  dissent  from 
the  judgment  just  rendered.  I  do  not  think  that  this  court  has  any  juris- 
diction to  determine  a  disputed  question  as  to  the  right  to  the  governorship 
of  a  State,  however  that  question  may  be  decided  by  its  authorities.  .  .  . 
The  fact  that  one  of  the  qualifications  prescribed  by  the  State  for  its  officers 
can  only  be  ascertained  and  established  by  considering  the  provisions  of  the 
law  of  the  United  States  in  no  way  authorizes  an  interference  by  the 
General  Government  with  the  state  action.  Because  an  officer  of  a  State 
must  [according  to  the  Constitution  or  statutes  of  that  State]  be  a  citizen 
of  the  United  States,  it  does  not  follow  that  the  tribunals  of  the  United 
States  can  alone  determine  that  fact,  and  that  the  decision  of  the  State 
in  respect  to  it  can  be  supervised  and  controlled  by  the  federal  authori- 
ties. .  .  .  The  office  of  sheriff  was  not  a  right  or  privilege  claimed  under  a 
law  of  the  United  States,  but  was  a  right  or  privilege  claimed  by  the 
election  under  the  laws  of  Missouri.  The  mere  fact  that  it  was  necessary 
that  the  incumbent  of  the  office  should  also  be  a  citizen  of  the  United  States, 
did  not  of  itself  give  him  a  right  to  that  office.  .  .  .  My  objection  to  the 
decision  is  not  diminished  by  the  fact  that  there  is  no  power  in  this  court 
to  enforce  its  decision  upon  the  State  of  Nebraska  should  resistance  be  made 
to  it.  Should  the  incumbent  declared  by  this  court  not  to  be  entitled  to 
the  office  refuse  to  surrender  it  and  the  state  authorities  should  stand  by 
him  in  such  refusal,  what  could  be  done  about  it?  .  .  .If  the  right  of  this 
court  to  interfere  in  this  case  can  be  sustained,  every  candidate  for  office 
alleging  that  the  successful  party  has  not  some  qualification  prescribed  by 
statute,  which  can  only  be  defined  by  reference  to  a  federal  law,  will  claim  a 
right  to  invoke  the  interference  of  the  federal  judiciary  to  determine  whether 
he  oiight  or  not  to  have  been  declared  elected." 

25  169  U.  S.  586;  18  Sup.  Ct.  Rep.  435;  42  L.  ed.  865. 


Federal  Control  of  Form  of  State  Governments.  171 

office  will  not  in  general  involve  any  question  for  review  by  this 
court.  A  law  of  that  kind  does  but  provide  for  the  carrying  out 
and  enforcement  of  a  policy  of  a  State  with  reference  to  its  politi- 
cal and  internal  administration,  and  a  decision  of  the  state  court 
in  regard  to  its  construction  and  validity  will  generally  be  con- 
clusive here.  The  facts  would  have  to  be  most  rare  and  excep- 
tional which  would  give  rise  in  a  case  of  this  nature  to  a  federal 
question." 

§  84.  Taylor  v.  Beckham. 

The  latest  case  upon  the  point  under  consideration  is  that  of 
Taylor  v.  Beckham,20  decided  in  1900.  This  case  arose  out  of  the 
following  facts.  At  a  general  election  held  in  November,  1899, 
in  Kentucky,  William  Goebel  and  J.  C.  W.  Beckham  were  the 
democratic  nominees  for  the  offices  of  governor  and  lieutenant- 
governor  respectively,  and  William  S.  Taylor  and  John  Marshall 
were  the  republican  candidates.  The  state  board  of  election  com- 
missioners whose  duty  it  was  to  canvass  the  returns,  determined 
that  Taylor  and  Marshall  were  elected,  and  they  were  thereupon 
inducted  into  office.  Goebel  and  Beckham  contested  the  election 
upon  various  grounds,  boards  of  contest  were  organized,  and  re- 
ported their  decisions  to  the  General  Assembly  for  its  action 
thereupon  as  provided  by  law.  These  reports,  which  were  ap- 
proved by  the  Assembly,  found  that  Goebel  and  Beckham  had 
been  elected.  They  were  then  duly  sworn  and  inducted  into 
office.  In  February,  1900,  Goebel  died  and  Beckham  succeeded 
to  the  governorship.  Taylor  and  Marshall,  however,  refused  to 
recognize  the  validity  of  the  proceedings  whereby  Goebel  and 
Beckham  had  been  declared  elected,  and  declined  to  surrender  the 
records  and  other  papers  pertaining  to  the  office  of  governor  or 
to  vacate  the  executive  offices  in  the  capitol  building  at  Frankfort. 
Whereupon  Beckham  brought  an  action  in  the  nature  of  a  quo 
warranto  in  the  Circuit  Court  of  the  State  against  Taylor  and 
Marshall.  Judgment  of  ouster  was  rendered  in  favor  of  the  plain- 
tiff. The  case  was  carried  on  appeal  to  the  Court  of  Appeals  of 
Kentucky  and  the  judgment  affirmed;  whereupon  a  writ  of  error 

2«  178  U.  S.  548;  20  Sup.  Ct.  Rep.  890;  44  L,  ed.  1187. 


172  United  States  Constitutional  Law. 

was  obtained  by  Taylor  ami  ^Marshall  from  the  Supreme  Court  of 
the  United  States.  The  Supreme  Court  dismissed  the  writ  of 
error. 

Two  grounds  for  federal  interference  had  been  set  up  by  the 
plaintiffs  in  error:  (1)  That  the  proceedings  by  which  they  had 
been  ousted  from  office  were  not  compatible  with  a  republican 
form  of  government;  (2)  that  they  had  been  deprived  of  a  prop- 
erty right  without  due  process  of  law. 

As  to  the  first  contention,  the  court  held  that  the  Common- 
wealth of  Kentucky  being  in  full  possession  of  its  faculties  as 
a  member  of  the  Union,  no  exigency  had  arisen  re  paring  the 
interference  of  the  Federal  Government  to  enforce  the  guaranty 
clause.  As  to  the  second  point,  the  court  say:  "  The  contention 
is  that,  although  the  statute  furnished  due  process  of  law,  the 
General  Assembly  in  administering  the  statute  denied  it,  and  that 
the  Court  of  Appeals  in  holding  to  the  rule  that  where  a  mole  of 
contesting  elections  is  specifically  provided  by  the  Constitution, 
or  laws  of  a  State,  that  mode  is  exclusive,  and  in  holding  that,  as 
the  power  to  determine  was  vested  in  the  General  Assembly  of 
Kentucky,  the  decision  of  that  body  was  not  subject  to  a  judi<  ial 
revision,  denied  a  right  claimed  under  the  federal  Constitute  n. 
The  Court  of  Appeals  did,  indeed,  adjudge  that  the  case  djd  not 
come  within  the  Fourteenth  Amendment,  because  the  right  to 
hold  the  office  of  governor  or  lieutenant-governor  of  Kentucky 
was  not  property  in  itself,  and  being  created  by  the  Constitution, 
was  conferred  and  held  solely  in  accordance  with  the  terms  of 
that  instrument  and  laws  passed  pursuant  thereto,  so  that,  in  re- 
spect of  an  elective  office,  a  determination  of  the  result  of  an 
election,  in  the  manner  provided,  adverse  to  a  claimant,  could 
not  be  regarded  as  a  deprivation  forbidden  by  that  amendment." 

The  court,  after  an  examination  of  authorities,  declare  that 
the  Kentucky  court  had  been  correct  in  thus  holding  that  a  pub- 
lic office  is  not  property,  and  say:  "  It  is  clear  [then]  that  the 
judgment  of  the  Court  of  Appeals,  in  declining  to  go  behind  the 
decision  of  the  tribunal  vested  by  the  state  Constitution  and  laws 
with  the  ultimate  determination  of  the  right  to  these  offices,  de- 
nied no  right  secured  by  the  Fourteenth  Amendment." 


Federal  Control  of  Form  of  State  Governments.  173 

In  assuming  the  position  here  taken  as  to  non-property  char- 
acter of  a  public  office  and  in  dismissing  the  writ  of  error  on  that 
ground,  it  would  seem  that  the  court  was  scarcely  in  harmony 
with  its  preceding  decisions,  in  several  of  which,  as  we  have  al- 
ready seen,  by  assuming  j  urisdiction,  and  by  examining  the 
character  of  the  processes  by  which  the  contests  for  office  had 
been  settled  to  see  if  they  provided  due  process  of  law,  it  had 
assumed  that  as  between  two  contestants  for  an  office,  the  right 
to  an  olfice  and  its  emoluments  was  a  property  right  within  the 
meaning  of  the  Fourteenth  Amendment.27 

27 Thus  Justice  Brewer,  in  his  dissenting  opinion,  says:  "I  agree  fully 
with  those  decisions  which  are  referred  to  [in  the  majority  opinion],  and 
which  hold  that  as  between  the  State  and  the  office  holder  there  is  no  con- 
tract right  either  to  the  term  of  office  or  to  the  amount  of  salary,  and 
that  the  legislature  may,  if  not  restrained  by  constitutional  provisions, 
abolish  the  office  or  reduce  the  salary.  But  when  the  office  is  not  disturbed, 
when  the  salary  is  not  changed,  and  when,  under  the  Constitution  of  the 
State,  neither  ran  be  by  the  legislature,  and  the  question  is  simply  whether 
one  shall  be  deprived  of  that  office  and  its  salary,  and  both  given  to  an- 
other, a  different  question  is  presented,  and  in  such  a  case  to  hold  that  the 
incumbent  has  no  property  in  the  office,  with  its  accompanying  salary,  does 
not  commend  itself  to  my  judgment."  Justice  Brewer  goes  on  to  argue, 
however,  that  the  judgment  of  the  Court  of  Appeals  of  Kentucky  should 
have  been  affirmed  for  the  reason  that  due  process  of  law  had  been  observed. 
"But,"  he  concludes,  "because,  as  I  understand  the  law,  this  court  has 
jurisdiction  to  review  a  judgment  of  the  highest  court  of  a  State  ousting 
one  from  his  office  and  giving  it  to  another,  and  a  right  to  inquire  whether 
that  judgment  is  right  or  wrong  in  respect  to  any  federal  question  such 
as  due  process  of  law,  I  think  the  writ  of  error  should  not  be  dismissed,  but 
that  the  judgment  of  the  Court  of  Appeals  of  Kentucky  should  be  affirmed." 
Justice  Brown  concurred  in  the  opinion  rendered  by  Justice  Brewer. 

A  dissenting  opinion  was  also  rendered  in  this  case  by  Justice  Harlan. 
In  this  he  argues  not  only  that  the  writ  of  error  should  not  have  been 
dismissed,  but'  that  the  court  should  adjudge  that  the  decree  in  the  state 
court  had  taken  from  Taylor  and  Marshall  rights  protected  by  the  Four- 
teenth Amendment.  In  agreement  with  Justices  Brewer  and  Brown  he  argues 
that  as  between  two  claimants  a  public  office  is  property,  and  had  been 
so  held  by  the  Supreme  Court  in  previous  cases.  But  he  goes  even  further 
than  this,  and  brings  the  right  of  office  within  the  meaning  of  the  term 
''  liberty "  as  used  in  the  Fourteenth  Amendment.  "  What  more  directly 
involves  the  liberty,  of  the  citizen,"  he  says,  "  than  to  be  able  to  enter 
upon  the  discharge  of  the  duties  of  an  office  to  which  he  has  been  lawfully 
elected   by  his   fellow   citizens?     What   more    certainly    infringes   upon   hia 


174  United  States  Constitutional  Law. 

liberty  than  for  the  legislature  of  the  State,  by  merely  arbitrary  action, 
in  violation  of  the  rules  and  forms  required  by  due  process  of  law,  to  take 
from  him  the  right  to.  discharge  the  public  duties  imposed  upon  him  by  his 
fellow  citizens  in  accordance  with  the  law?  ...  I  grant  that  it  is  competent 
for  a  State  to  provide  for  the  determination  of  contested  election  cases 
by  the  legislature.  All  that  I  now  seek  to  maintain  is  the  proposition  that 
when  a  state  legislature  deals  with  a  matter  within  its  jurisdiction,  and  which 
involves  the  life,  liberty  or  property  of  the  citizen,  it  cannot  ignore  the 
requirement  of  due  process  of  law.  .  .  .  Looking  into  the  record  before  us, 
I  find  such  action  taken  by  the  body  claiming  to  be  organized  as  the  lawful 
legislature  of  Kentucky  as  was  discreditable  in  the  last  degree  and  un- 
worthy of  the  free  people  whom  it  professed  to  represent."  After  a  state- 
ment of  the  facts  which  in  his  opinion  justified  this  characterization  of  the 
action  of  the  legislature,  Justice  Harlan  concludes:  "Those  who  composed 
that  body  seemed  to  have  shut  their  eyes  against  the  proof  for  fear  that  it 
would  compel  them  to  respect  the  popular  will  as  expressed  at  the  polls. 
Indignant,  as  naturally  they  were  and  should  have  been,  at  the  assassina- 
tion of  their  leader,  they  proceeded  in  defiance  of  all  forms^  of  law  and  in 
contempt  of  the  principles  upon  which  free  government  rest,  to  avenge  that 
terrible  crime,  namely,  the  destruction  by  arbitrary  methods  of  the  right  of 
the  people  to  choose  their  chief  magistrate.  The  former  crime,  if  the  offender 
be  discovered,  can  be  punished  as  directed  by  law.  The  latter  should  not 
be  rewarded  by  a  declaration  of  the  inability  of  the  judiciary  to  protect 
public  and  private  rights,  and  thereby  the  rights  of  voters,  against  the 
wilful,  arbitrary  action  of  a  legislative  tribunal  which,  we  must  assume 
from  the  record,  deliberately  acted  upon  a  contested  election  case  involving 
the  rights  of  the  people  and  of  their  chosen  representative  in  the  office  of 
governor  without  looking  into  the  evidence  upon  which  alone  any  lawful  deter- 
mination of  the  case  could  be  made.  The  assassination  of  an  individual 
demands  the  severest  punishment  which  it  is  competent  for  human  laws  in  a 
free  land  to  prescribe.  But  the  overturning  of  the  public  will,  as  expressed 
at  the  ballot  box,  without  evidence  or  against  evidence,  in  order  to  ac- 
complish partisan  ends,  is  a  crime  against  free  government,  and  deserves 
the  execration  of  all  lovers  of  liberty.  ...  I  cannot  believe  that  the  judici- 
ary is  helpless  in  the  presence  of  such  a  crime.  The  person  elected  as  well 
as  the  people  who  elected  him,  have  rights  that  the  courts  may  protect. 
To  say  that  in  such  an  emergency  the  judiciary  cannot  interfere  is  to  sub- 
ordinate the  right  to  mere  power,  and  to  recognize  the  legislature  of  a 
State  as  above  the  supreme  law  of  the  land.  .  .  .  The  doctrine  of  legislative 
absolutism  is  foreign  to  free  government  as  it  exists  in  this  country.  The 
cornerstone  of  our  republican  institutions  is  the  principle  that  the  powers 
of  government  shall,  in  all  vital  particulars,  be  distributed  among  three 
separate  co-ordinate  departments,  legislative,  executive,  and  judicial.  And 
liberty  regulated  by  law  cannot  be  permanently  secured  against  the  assaults 
of  power  or  the  tyranny  of  a  majority,  if  the  judiciary  must  be  silent  when 
rights  existing  independently  of  human  sanction,  or  acquired  under  the  law, 
are  at  the  mercy  of  legislative  action  taken  in  violation  of  due  process  of  law." 


CHAPTER  XL 

FEDERAL  SUPERVISION  OF  STATE  ACTIVITIES;  THE  FOURTEENTH 

AMENDMENT. 

§  85.  The  Fourteenth  Amendment. 

In  the  chapters  which  have  gone  before,  the  manner  in  which 
the  Federal  Government  is  secured  from  interference  on  the 
part  of  the  States  has  been  considered.  AVe  turn  now  to  a  topic 
which,  while  closely  related  to  this  subject,  is  yet  distinct  from 
it.  This  topic  is  the  extent  of  the  legal  power  of  the  Federal 
Government  to  examine  state  laws  and  supervise  their  execution 
with  a  view  to  seeing  that  they  do  not  infringe  in  any  way  upon 
the  rights  secured  to  individuals  by  the  federal  Constitution.  In 
other  words,  the  question  now  to  be  considered  is  not  the  mainte- 
nance of  the  supremacy  of  the  Federal  Government,  but  the  pro- 
tection of  individuals  in  the  enjoyment  of  the  rights  and  im- 
munities guaranteed  to  them  by  the  federal  Constitution. 

Prior  to  the  adoption  of  the  Fourteenth  Amendment  in  1868 
the  laws  of  the  individual  States,  so  long  as  they  related  to  sub- 
jects over  which  the  States  had  the  right  of  legislation,  were  not 
subject  to  examination  in  federal  courts  with  a  view  to  ascertain- 
ing whether  they  deprived  anyone  of  life,  liberty,  or  property 
without  due  process  of  law,  or  denied  to  anyone  equal  legal  pro- 
tection. The  first  nine  amendments  to  the  federal  Constitution 
which  enumerated  the  fundamental  rights  of  individuals  that 
might  not  be  violated  were,  from  the  beginning,  construed  to 
limit  not  the*States  but  only  the  Federal  Government.  Until, 
therefore,  the  Fourteenth  Amendment  was  adopted  there  was,  so 
far  as  the  federal  Constitution  and  laws  were  concerned,  nothing 
to  prevent  the  several  States  from  enacting  laws  which  denied  to 
their  own  citizens  the  equal  protection  of  the  laws  or  deprived 
them  of  life,  liberty,  and  property,  without  due  process  of  law. 
The  only  limitations  laid  upon  the  States  by  the  Constitution 
were  that  they  should  enact  no  bills  of  attainder,  or  ex  post  facto 

[175] 


176  United  States  Constitutional  Law. 

laws,  or  laws  impairing  the  obligation  of  contracts.  As  a  matter 
of  fact,  indeed,  all  of  the  States  had  by  their  own  Constitutions 
taken  from  their  legislatures  the  power  to  enact  laws  upon  certain 
specified  topics,  and  forbidden  them  to  violate  certain  declared 
principles  of  justice  and  right.  But  the  adoption  of  these  con- 
stitutional limitations  was  purely  voluntary  upon  their  part. 

In  1868,  however,  as  one  of  the  results  of  the  Civil  War,  the 
Fourteenth  Amendment  was  adopted,  which,  after  declaring  that 
"  all  persons  born  or  naturalized  in  the  United  States,  and  sub- 
ject to  the  jurisdiction  thereof,  are  citizens  of  the  United  States 
and  of  the  State  wherein  they  reside,"  goes  on  to  provide  that, 
"  no  State  shall  make  or  enforce  any  law  which  shall  abridge  the 
privileges  and  immunities  of  citizens  of  the  United  States;  nor 
shall  any  State  deprive  any  person  of  life,  liberty,  or  property 
without  due  process  of  law;  nor  deny  to  any  person  within  its 
jurisdiction  the  equal  protection  of  the  laws." 

For  a  number  of  years  after  the  adoption  of  this  Amendment 
it  was  by  no  means  certain  that  the  effect  of  the  above-cited  pro- 
visions would  not  be  to  endow  the  United  States  Government  with 
additional  powers  so  great  as  fundamentally  to  alter  the  very 
nature  of  the  Union  itself.  There  can  be  no  question  but  that  the 
clauses  of  the  Amendment  which  we  have  quoted  were  easily 
susceptible  of  an  interpretation  that  would  have  given  them  this 
result,  and  that,  at  the  time  they  were  framed  and  adopted  by 
Congress  and  ratified  by  the  necessary  number  of  state  legisla- 
tures, there  were  very  many  who  believed  that  they  would,  and 
desired  that  they  should,  work  this  revolutionary  change,  in  the 
American  constitutional  system.1  Fortunately,  however,  as  all 
must  now  believe,  the  Supreme  Court  has  been  led  to  give  to  these 
words  a  construction  that  robbed  them  of  such  an  effect. 

i  See  especially  the  debates  attendant  upon  the  passage  of  the  Civil  Eights 
Bill  of  1866,  the  doubts  as  to  the  constitutionality  of  which  led  to  the 
adoption  of  the  Fourteenth  Amendment.  See  also  the  dissenting  opinion  of 
Justice  Harlan  in  the  Civil  Rights  Cases  (109  U.  S.  3:  3  Sup.  Ct.  Rep.  18: 
27  L.  ed.  835).  See  also  especially  Flack,  The  Adoption  of  the  Fourteenth 
Amendment. 


i'EUKKAL   SUPERVISION    OF   STATE  ACTIVITIES.  177 

Tins  the  court  has  been  able  to  do  by  the  principles  which  it 
has  laid  down  in  the  cases  which  follow.2 

§  86.  The  Slaughter  House  Cases. 

The  famous  Slaughter  House  Cases,3  decided  in  1873,  grew  out 
of  the  following  facts :  The  State  of  Louisiana  in  the  exercise  of 
its  "  police  powers,"  had  passed  an  act  chartering  a  company, 
and  giving  to  it  the  exclusive  right  to  establish  and  maintain 
stock-yards  and  landing  places  and  slaughter  houses  for  the  City 
of  New  Orleans,  and  providing  that  all  animals  intended  for 
food  should  be  slaughtered  there.  The  plaintiffs  in  the  cases  that 
have  since  come  to  be  known  as  the  "  Slaughter  House  Cases  " 
alleged  that  this  act  was  unconstitutional  as  tested  by  the  federal 
Constitution  on  the  several  grounds  that  it  was  in  violation  of 
the  Thirteenth  Amendment  in  that  it  created  an  involuntary  servi- 
tude upon  the  part  of  those  who  were  compelled  to  resort  to  this 
privileged  company;  and  that  it  was  in  violation  of  the  Four- 
teenth Amendment  in  that  it  deprived  persons  of  liberty  and  prop- 
erty without  due  process  of  law,  denied  to  them  the  equal  protec- 
tion of  the  laws,  and  abridged  the  privileges  and  immunities  of 
citizens  in  the  United  States.  It  is  only  with  this  last  claim  that 
we  are  now  concerned. 

As  we  shall  later  see,  the  Fourteenth  Amendment  has  been  con- 
strued to  give  to  the  federal  courts  the  power  of  examining 
whether,  in  the  exercise  of  their  ordinary  police  and  other  powers, 
the  States  have  denied  to  anyone  due  process  of  law  or  the  equality 
of  the  laws,  -but  the  claim  that  the  rights  and  immunities  which 
were  alleged  to  have  been  violated  by  the  Louisiana  statute  were 
ones  coming  within  the  scope  of  the  phrase  "  privileges  or  im- 

2  In  the  following  pages  there  is  not  attempted  a  general  examination  of 
the  Fourteenth  Amendment,  but  only  a  consideration  of  the  extent  to  which 
this  addition  to  the  Constitution  may  be  said  to  have  altered  the  general 
character  of  our  constitutional  system,  especially  with  reference  to  the  extent 
to  which  either  Congress  has  been  granted  an  increased  legislative  power, 
or  the  Federal  Government  endowed  with  a  general  supervisory  jurisdiction 
over   state   legislation. 

3  16  Wall.  36;  21  L.  ed.  394. 

12 


178  United  States  Constitutional  Law. 

munities  of  citizens  of  the  United  States  "  as  used  in  the  Four- 
teenth Amendment,  raised  the  fundamental  question  whether  or 
not,  by  that  Amendment,  the  entire  so-called  "  police  powers  "  of 
the  States  had  been  placed  within  the  direct  legislative  definition 
and  control  of  Congress.  This  would  have  resulted  from  the  fact 
that  by  the  Amendment  Congress  is  given  authority  to  enforce 
its  provisions  by  appropriate  legislation.  If,  therefore,  such  a 
right  as  was  here  alleged  to  have  been  violated  could  be  held  to 
be  a  federal  right  it  would  be  within  the  power  of  Congress  to 
define  it,  and  all  other  similar  rights,  and  to  impose  penalties 
upon  their  violation,  and  thus  to  deprive  the  States  of  their  en- 
tire police  powers.  These  police  powers,  it  is  scarcely  necessary 
to  observe,  cover  almost  the  entire  field  of  private  rights,  personal 
and  proprietary,  including,  as  they  do,  the  general  authority  of 
the  State  to  legislate  regarding  the  social,  economic,  and  moral 
welfare  of  its  citizens.  To  have  granted  the  contention  of  the 
plaintiffs  would  thus  have  made  Congress,  instead  of  the  state 
legislatures,  the  possible  source  of  the  great  body  of  private  laws 
by  which  the  citizen  is  governed.  It  is,  therefore,  not  surprising 
that  the  court  in  its  majority  opinion  should  have  said :  "  We  do 
not  conceal  from  ourselves  the  great  responsibility  which  .  .  . 
devolves  upon  us.  Xo  questions  so  far  reaching  and  pervading  in 
their  consequences,  so  profoundly  interesting  to  the  people  of  this 
country,  and  so  important  in  their  bearing  upon  the  relations  of 
the  United  States  and  of  the  several  States  to  each  other,  and  to 
the  citizens  of  the  States  and  of  the  United  States,  have  been 
before  this  court  during  the  official  life  of  any  of  its  present 
members." 

The  argument  of  the  plaintiffs  which  found  acceptance  in  the 
opinions  rendered  by  the  minority  of  the  court  was  that  the  indi- 
vidual as  a  free  man  and  citizen  of  a  State,  had,  before  the  adop- 
tion of  the  Amendment,  certain  fundamental  rights,  privileges, 
and  immunities,  whicli  were  determined  by  state  statutes  and  the 
general  principles  of  the  common  law,  and  that  by  that  Amend- 
ment the  citizen  became  primarily  a  citizen  of  the  United  States, 
and  only  secondarily,  by  residence,  a  citizen  of  a  particular  State 


Federal  Supervision  of  State  Activities.  179 

of  the  Union,  and  that,  therefore,  these  fundamental  rights, 
privileges,  and  immunities  which  formerly  belonged  to  him  as  a 
citizen  of  the  State  in  which  he  lived  now  became  his  as  a  citizen 
of  the  United  States,  and,  as  such,  no  longer  subject  to  abridge- 
ment by  the  States.  Only  by  this  interpretation,  it  was  argued, 
could  the  clause  of  the  Amendment  which  we  are  considering,  be 
given  any  force  whatever.  Thus  Justice  Field,  in  his  dissenting 
opinion,  argued :  "  The  Amendment  does  not  attempt  to  confer 
any  new  privileges  or  immunities  upon  citizens,  or  to  enumerate 
or  define  those  already  existing.  It  assumes  that  there  are  such 
privileges  and  immunities  which  belong  of  right  to  citizens  as 
such,  and  ordains  that  they  shall  not  be  abridged  by  state  legis- 
lation. If  this  inhibition  has  no  reference  to  privileges  and  im- 
munities of  this  character,  but  only  refers  ...  to  such 
privileges  and  immunities  as  were  before  its  adoption  specially 
designated  in  the  Constitution  or  necessarily  implied  as  belonging 
to  citizens  of  the  United  States,  it  was  a  vain  and  idle  enactment, 
which  accomplished  nothing,  and  most  unnecessarily  excited  Con- 
gress and  the  people  on  its  passage.  ^Yith  privileges  and  immu- 
nities thus  designated  no  State  could  ever  have  interfered  by  its 
laws,  and  no  new  constitutional  provision  was  required  to  inhibit 
such  interference.  The  supremacy  of  the  Constitution  and  the 
laws  of  the  United  States  always  controlled  any  state  legislation 
of  that  character.  But  if  the  Amendment  refers  to  the  natural 
and  inalienable  rights  which  belong  to  all  citizens,  the  inhibition 
has  a  profound  significance  and  consequence."  4 

*  As  illustrative  of,  and  as  a  partial  enumeration  of  these  federal  privileges 
and  immunities,  Justice  Bradley  quoted  the  language  used  by  Justice  Washing- 
ton in  Corfield  v.  Coryell  (4  Wash.  C.  C.  380)  in  interpreting  the  article 
of  the  Constitution  which  provides  that  the  citizens  of  each  State  shall  be 
entitled  to  all  the  privileges  and  immunities  of  citizens  in  the  several  States. 
"The  inquiry  is,"  said  the  Justice  in  that  case,  "what  are  the  privileges 
and  immunities  of  citizens  in  the  several  States?  We  feel  no  hesitation  in 
confining  these  expressions  to  those  privileges  and  immunities  which  are  in 
their  nature  fundamental;  which  belong  of  right  to  the  citizens  of  all  free 
governments,  and  which  have  at  all  times  been  enjoyed  by  the  citizens  of  the 
several  States  which  compose  this  Union  from  the  time  of  their  becoming 
free,   independent   and   sovereign.     What  these   fundamental   privileges  are   it 


180  United  States  Constitutional  Law. 

The- majority  of  the  court  were  not  able  to  accept  this  construc- 
tion of  the  Amendment  which,  as  we  have  seen,  would  have  opened 
such  possibilities  of  increasing  the  federal  powers  at  the  expense 
of  those  of  the  States.  Referring  to  "  the  history  of  the  times  " 
in  which  the  Thirteenth,  Fourteenth  and  Fifteenth  Amendments 
were  adopted,  the  court  found  in  them  a  unity  of  purpose, —  the 
protection  of  the  freed  negroes, —  and  not  an  intention  radically 
to  alter  the  constitutional  character  of  the  Union.  Attention  is 
called  to  the  fact  that  the  Fourteenth  Amendment  implies  and 
by  its  language  recognizes  a  continuance  of  a  distinction  between 
federal  and  state  citizenship,  and  that  from  this  it  follows  that 
the  privileges  and  immunities  attaching  to  or  growing  out  of  each 
are  to  be  distinguished.  "  Was  it  the  purpose  of  the  Fourteenth 
Amendment,"  the  court  ask,  "  by  the  simple  declaration  that  no 
State  should  make  or  enforce  any  law  which  shall  abridge  the 
privileges  and  immunities  of  citizens  of  the  United  States,  to 
transfer  the  security  and  protection  of  all  the  civil  rights  which 
we  have  mentioned,  from  the  States  to  the  Federal  Government? 
And  where  it  is  declared  that  Congress  shall  have  the  power  to 
enforce  that  article,  was  it  intended  to  bring  within  the  control 
of  Congress  the  entire  domain  of  civil  rights  heretofore  belonging 
exclusively  to  the  States?  All  this  and  more  must  follow,  if  the 
proposition  of  the  plaintiffs  in  error  be  sound.  For  not  only  are 
these  rights  subject  to  the  control  of  Congress  whenever  in  its 
discretion  any  of  them  are  supposed  to  be  abridged  by  state  legis- 

would  perhaps  be  more  tedious  than  difficult  to  enumerate.  They  may,  how- 
ever, be  all  comprehended  under  the  following  general  heads:  protection  by 
the  government;  the  enjoyment  of  life  and  liberty  with  the  right  to  acquire 
and  possess  property  of  every  kind,  and  to  pursue  and  obtain  happiness  and 
safety,  subject,  nevertheless,  to  such  restraints  as  the  government  may  justly 
prescribe  for  the  general  good  of  the  whole;  the  right  of  a  citizen  of  one 
State  to  pass  through,  or  reside  in,  any  other  State  for  purposes  of  trade, 
agriculture,  professional  pursuits,  or  otlierw  ise ;  to  claim  the  benefit  of  the 
writ  of  haibeas  corpus;  to  institute  arid  maintain  actions  of  any  kind  in 
the  courts  of  the  State;  to  take,  hold,  and  dispose  of  property,  either  real  or 
personal,  and  an  exemption  from  higher  taxes  or  impositions  than  are  paid 
by  the  other  citizens  of  the  State,  mav  be  mentioned  as  some  of  the  par- 
ticular privileges  and  immunities  of  citizens  which  are  clearly  embraced  by 
the  general  description  of  privileges  deemed  to  be  iundamental." 


Federal  Supervision  of  State  Activities.  181 

lation,  but  that  body  may  also  pass  laws  in  advance,  limiting  and 
restricting1  the  exercise  of  legislative  power  by  the  States,  in  their 
most  ordinary  and  usual  functions,  as  in  its  judgment  it  may 
think  proper  on  all  such  subjects.  And  still  further,  such  a  con- 
struction followed  by  the  reversal  of  the  judgments  of  the  Su- 
preme Court  of  Louisiana  in  these  cases,  would  constitute  this 
court  a  perpetual  censor  upon  all  legislation  of  the  States,  on  the 
civil  rights  of  their  own  citizens,  with  authority  to  nullify  such 
as  it  did  not  approve  as  consistent  with  those  rights,  as  they  e& 
isted  at  the  Time  of  the  adoption  of  this  amendment,  .  .  . 
But  when,  as  in  the  case  before  us,  these  consequences  are 
so  serious,  so  far  reaching  and  pervading,  so  great  a  departure 
from  the  structure  and  spirit  of  our  institutions;  when  the 
effect  is  to  fetter  and  degrade  the  state  governments  by  subject- 
ing them  to  the  control  of  Congress,  in  the  exercise  of  powers 
heretofore  universally  conceded  to  them  of  the  most  ordinary  and 
fundamental  character;  when  in  fact  it  radically  changes  the 
whole  theory  of  the  relation  of  the  state  and  federal  governments 
to  each  other  and  of  both  of  these  governments  to  the  people ;  the 
argument  has  a  force  that  is  irresistible,  in  the  absence  of  lan- 
guage which  expresses  such  a  purpose  too  clearly  to  admit  of 
doubt.  We  are  convinced  that  no  such  results  were  intended  by 
Congress  which  proposed  these  Amendments,  nor  by  the  legis- 
latures of  the  States,  which  ratified  them." 

With  reference  to  the  question  that  is  immediately  suggested, 
as  to  what  are  these  distinctively  federal  rights  which  the  States 
are  not  to  infringe,  the  court  says:  "  Having  shown  that  the 
privileges  and  immunities  relied  on  in  the  argument  are  those 
which  belong  to  citizens  of  the  States  as  such,  and  that  they  are 
left  to  the  state  governments  for  security  and  protection,  and  not 
by  this  article  placed  under  the  special  care  of  the  Federal  Gov- 
ernment, we  may  hold  ourselves  excused  from  defining  the  privi- 
leges and  immunities  of  citizens  of  the  United  States  which  no 
State  can  abridge,  until  some  case  involving  those  privileges  may 
make  it  necessary  to  do  so.  But  lest  it  should  be  said  that  no 
such  privileges  and  immunities  are  to  be  found  if  those  we  have 


182  United  States  Constitutional  Law. 

been  considering  are  excluded,  we  venture  to  suggest  some  which 
owe  their  existence*  to  the  Federal  Government,  its  national  char- 
acter, its  Constitution,  or  its  laws.  One  of  these  is  well  described 
in  the  case  of  Crandall  v.  ^Nevada.5  It  is  said  to  be  the  right  of 
the  citizen  of  this  great  country,  protected  by  implied  guarantees 
of  its  Constitution,  '  to  come  to  the  seat  of  government  to  assert 
any  claim  he  may  havG  upon  that  government,  to  transact  any 
business  he  may  have  with  it,  to  seek  its  protection,  to  share  its 
offices,  to  engage  in  administering  its  functions.  He  has  the  right 
of  free  access  to  its  seaports,  through  which  all  operations  of  for- 
eign countries  arc  conducted,  to  the  sub-treasuries,  land  offices, 
and  courts  of  justice  in  the  several  States.'  And,  quoting  from 
the  language  of  Chief  Justice  Taney  in  another  case,  it  is  said 
'  that  for  all  the  great  purposes  for  which  the  Federal  Government 
was  established,  we  are  one  people,  with  one  common  country,  we 
are  all  citizens  of  the  United  States,'  and  it  is,  as  such  citizens, 
that  their  rights  are  supported  by  this  court  in  Crandall  v.  Ne- 
vada. Another  privilege  of  a  citizen  of  the  United  States  is  to 
demand  the  care  and  protection  of  the  Federal  Government  over 
his  life,  liberty,  and  property  when  on  the  high  seas  or  within 
the  jurisdiction  of  a  foreign  government.  Of  this  there  can  be 
no  doubt,  nor  that  the  right  depends  upon  his  character  as  a  citi- 
zen of  the  United  States.  The  right  to  peaceably  assemble  and 
petition  for  redress  of  grievances,  the  privilege  of  the  writ  of 
habeas  corpus,  are  rights  of  the  citizen  guaranteed  by  the  federal 
Constitution.  The  right  to  use  the  navigable  waters  of  the  United 
States,  however  they  may  penetrate  the  territory  of  the  several 
States,  all  rights  secured  to  our  citizens  by  treaties  with  foreign 
nations,  are  dependent  upon  citizenship  of  the  United  iStates,  and 
not  citizenship  of  a  State.  One  of  these  privileges  is  conferred  by 
the  very  article  under  consideration.  It  is  that  a  citizen  of  the 
United  States  can,  of  his  own  volition,  become  a  citizen  of  any 
State  of  the  Union  by  a  bona  fide  residence  therein,  with  the  same 
rights  as  the  other  citizens  of  that  State.  To  these  may  be  added 
the  rights  secured  by  the  Thirteenth  and  Fifteenth  Articles  of 

5  6  Wall.  35;   18  L,  ed.  745. 


Federal  Supervision  of  State  Activities.  183 

Amendment,  and  by  the  other  clause  of  the  Fourteenth,  next  to 
be  considered.'"' 

§  87.  Effect  of  Fourteenth  Amendment  upon  Rights  Enumerated 
in  First  Eight  Amendments. 
In  Ex  parte  Spies7  the  point  was  urged  upon  the  court  that  the 
privileges  and  immunities  secured  against  federal  infringement 
by  the  first  eight  Amendments  to  the  federal  Constitution,  were, 
because  so  secured,  federal  privileges  and  immunities,  which,  ac- 
cording to  the  Fourteenth  Amendment,  and  the  doctrine  of  the 
Slaughter  House  Cases  the  States  might  not  abridge  or  deny. 
The  counsel  for  Spies  in  his  argument  said :  "  The  position  I 
take  is  this.  Though  originally  the  first  ten  Amendments  were 
adopted  as  limitations  on  federal  power,  yet  in  so  far  as  they 
secure  and  recognize  fundamental  rights  —  common  law  rights  — 
of  the  man,  they  make  them  privileges  and  immunities  of  the  man 
as  a  citizen  of  the  United  States,  and  cannot  now  be  abridged  by 
a  State  under  the  Fourteenth  Amendment.  In  other  words  while 
the  ten  Amendments,  as  limitations  on  power,  only  apply  to  the 

6  Cooley,  in  his  Principles  of  Constitutional  Law,  p.  245,  gives  the  follow- 
ing enumeration  of  distinctively  federal  rights:  "A  citizen  of  the  United 
States,"  he  says,  "  as  such  has  the  right  to  participate  in  foreign  and  inter- 
state commerce,  to  have  the  benefit  of  the  postal  laws,  to  make  use  in  common 
with  others  of  the  navigable  waters  of  the  United  States,  and  to  pass  from 
State  to  State  into  foreign  countries,  because  over  all  these  subjects  the 
jurisdiction  of  the  United  States  extends,  and  they  are  coerced  by  its  law.  .  .  . 
So  every  citizen  may  petition  the  federal  authorities  which  are  set  over  him 
in  respect  to  any  matter  of  public  concern ;  may  examine  the  public  records 
of  the  federal  jurisdiction;  may  visit  the  seat  of  government  without  being 
subjected  to  the  payment  of  a  tax  for  the  privilege;  may  be  purchaser  of 
the  public  lands  on  the  same  terms  with  others;  may  participate  in  the 
government  if  he  comes  within  the  conditions  of  suffrage,  and  may  demand 
the  care  and  protection  of  the  United  States  when  on  the  high  seas,  or 
within  the  jurisdiction  of  a  foreign  government.  The  privileges  suggest  the 
immunities.  Wherever  it  is  the  duty  of  the  United  States  to  give  protection 
to  a  citizen  against  any  harm,  inconvenience,  or  deprivation,  the  citizen 
is  entitled  to  an  immunity  which  pertains  to  federal  citizenship."  "One  very 
plain  and  unquestionable  immunity,"  Cooley  adds,  "  is  exemption  from  any 
tax  burden,  or  imposition  under  state  laws,  as  a  condition  to  the  enjoyment  of 
any  right  or  privilege  under  the  laws  of  the  United  States." 

7  123  U.  S.  131;  8  Sup.  Ct.  Rep.  22;  31  L.  ed.  80. 


184  United  States  Constitutional  Law. 

Federal  Government,  and  not  to  the  States,  yet  in  so  far  as  they 
declare  or  recognize  rights  of  persons,  these  rights  are  theirs  as 
citizens  of  the  United  States,  and  the  Fourteenth  Amendment  as 
to  such  rights  limits  state  power  as  the  ten  Amendments  had  lim- 
ited federal  power." 

The  court,  however,  found  that,  in  fact,  no  right  of  Spies  se- 
cured by  the  first  eight  Amendments  had  been  violated,  and  that, 
therefore,  it  was  not  necessary  to  pass  upon  this  constitutional 
point  which  his  counsel  had  raised. 

In  Maxwell  v.  Dow,s  however,  the  court  found  itself  compelled 
to  pass  specifically  upon  this  point.  The  court  in  its  majority 
opinion  denied  the  claim  set  up,  asserting  that  the  mere  fact  that 
a  certain  privilege  or  immunity  was  guaranteed  against  federal 
infringement  did  not  operate  to  make  such  a  privilege  or  immunity 
distinctively  federal  in  character.  With  reference  to  the  rights 
enumerated  in  the  first  eight  Amendments,  the  court  said :  "  In 
none  are  the  privileges  or  immunities  granted  and  belonging  to 
the  individual  as  a  citizen  of  the  United  States,  but  they  are 
secured  to  all  persons  as  against  the  Federal  Government,  entirely 
irrespective  of  such  citizenship.  As  the  individual  does  not  enjoy 
them  as  a  privilege  of  citizenship  of  the  United  States,  therefore, 
when  the  Fourteenth  Amendment  prohibits  the  abridgement  by 
the  States  of  those  privileges  or  immunities  which  he  enjoys  as 
such  citizen,  it  is  not  correct  or  reasonable  to  say  that  it  covers 
and  extends  to  certain  rights  which  he  does  not  enjoy  by  reason 
of  his  citizenship,  but  simply  because  those  rights  exist  in  favor 
of  all  individuals  as  against  the  federal  governmental  powers. 
The  nature  of  the  character  of  the  right  of  trial  by  jury  is  the 
same  in  a  criminal  prosecution  as  in  a  civil  action,  and  in  neither 
case  does  it  spring  from  nor  is  it  founded  upon  the  citizenship  of 
the  individual  as  a  citizen  of  the  United  States,  and  if  not,  then 
it  cannot  be  said  that  in  either  case  it  is  a  privilege  or  immunity 
which  alone  belongs  to  him  as  such  citizen."  ° 

8  176  U.  S.  581;  20  Sup.  Ct.  Rep.  448;  44  L.  ed.  507. 

9  Justice  Harlan  rendered  a  dissenting  opinion  in  the  course  of  which  he 
said:     "It  seems  to  me  that  the  privileges  and  immunities  enumerated  in 


Federal  Supervision  of  State  Activities.  185 

§  88.  Suffrage  not  a  Necessary  Incident  of  Citizenship. 

In  Alinor  v.  llappersett10  it  was  held  that  the  suffrage  is  not 
a  right  springing  from  federal  citizenship.  This  doctrine  was 
declared  in  passing  upon  the  claim  made  in  that  case  hx  a  woman 
that  because  of  her  federal  citizenship  she  could  not  constitution- 
ally be  disqualified  from  voting  on  account  of  her  sex.  In  pass- 
ing upon  this  claim  the  court  admitted  that  citizenship  was  not 
dependent  upon  sex,  but  denied  that  the  right  of  suffrage  was 
necessarily  attached  to  the  status  of  citizenship.11 

these  Amendments  belong  to  every  citizen  of  the  United  States.  They  were 
universally  so  regarded  prior  to  the  adoption  of  the  Fourteenth  Amendment. 
In  order  to  form  a  more  perfect  union,  establish  justice,  insure  domestic 
tranquillity,  provide  for  the  common  defeuse,  promote  the  general  welfare,  and 
secure  the  blessings  of  liberty  to  themselves  and  their  posterity,  the  political 
community  known  as  the  people  of  the  United  States  ordained  and  established 
the  Constitution  of  the  United  States;  and  every  member  of  that  political 
community  was  a  citizen  of  the  United  States.  It  was  that  community  that 
adopted  in  the  mode  prescribed  by  the  Constitution,  the  first  ten  Amendments; 
and  what  they  had  in  view  by  so  doing  was  to  make  it  certain  that  the 
privileges  and  immunities  therein  specified  —  the  enjoyment  of  which,  the 
fathers  believed,  were  necessary  in  order  to  secure  the  blessings  of  liberty  — 
could  never  be  impaired  or  destroyed  by  the  National  Government.  ...  It  does 
not  solve  the  question  before  us  to  say  that  the  first  ten  Amendments  had 
reference  only  to  the  powers  of  the  Xational  Government,  and  not  to  the 
powers  of  the  States.  For,  if,  prior  to  the  adoption  of  the  Fourteenth  Amend- 
ment, it  was  one  of'  the  privileges  or  immunities  of  citizens  of  the  United 
Stales  that  they  should  not  be  tried  for  crime  in  any  court  organized  or 
existing  under  national  authority  except  by  a  jury  composed  of  twelve  persons, 
li  w  can  it  be  that  a  citizen  of  the  United  States  may  now  be  tried  in  a 
state  court  for  crime,  particularly  for  an  infamous  crime,  by  eight  jurors, 
when  that  Amendment  expressly  declares  that  '  no  State  shall  make  or  enforce 
any  law  which  shall  abridge  the  privileges  or  immunities  of  the  citizens  of  the 
United  States?'" 

i«21  Wall.  1G2;  22  L.  ed.  627. 

it  The  court  say:  "  Sex  has  never  been  made  one  of  the  elements  of  citizen- 
ship in  the  United  States.  In  this  respect  men  have  never  had  au  advantage 
over  women.  The  same  laws  precisely  apply  to  both.  The  Fourteenth  Amend- 
ment did  not  affect  the  citizenship  of  women  any  more  than  "it  did  of  men. 
In  this  particular,  therefore,  the  rights  of  Mrs.  Minor  do  not  depend  upon  the 
Amendment.  She  has  always  been  a  citizen  from  her  birth,  and  entitled  to 
all  the  privileges  and  immunities  of  citizenship.  The  Amendment  prohibited 
the  State,  of  which  she  is  a  citizen,  from  Abridging  any  of  her  privile^os  and 
immunities  as  a  citizen  of  the  United  States;  but  it  did  not  confer  citizenship 


186  United  States  Constitutional  Law. 

§  89.  Legislative  Power  Granted  Congress  by  the  Fourteenth 
Amendment. 

From  the  foregoing  cases  it  appears  that  the  clause  of  the 
Fourteenth  Amendment  which  declares  that  "  -Xo  State  shall 
make  or  enforce  any  law  which  shall  abridge  the  privileges  or 
immunities  of  citizens  of  the  United  States,"  has  not  given  to  the 
General  Government  any  legislative  or  even  supervisory  power 
which  it  did  not  possess  before  the  Fourteenth  Amendment  was 
adopted. 

In  another  important  case  it  has  been  held  that  the  last  clause 
of  the  Amendment  which  empowers  Congress  to  enforce  its  pro- 
visions by  appropriate  legislation,  does  not  give  to  that  body  a 
direct  legislative  power  to  define  and  establish  the  rights  of  life, 
liberty,  and  property  of  which  the  individual  may  not  be  deprived 
by  the  States  without  due  process  of  law,  or  to  define  and  estab- 
lish what  shall  constitute  the  equal  protection  of  the  laws  which 
the  States  may  not  deny  to  persons  within  their  jurisdiction. 

In  1875,  in  pursuance  of  an  authority  which  it  conceived  to  be 
granted  by  the  Fourteenth  Amendment,  Congress  passed  a  so- 
called  Civil  Rights  Act,  fixing  generally  the  penalties  to  which 
state  officials  should  be  subject  for  depriving  any  citizen  of  the 
United  States  of  any  of  the  rights  secured  him  by  the  Thirteenth 
and  Fourteenth  Amendments,  and  declaring  specifically  that 
negroes  should  receive  the  same  treatment  at  public  inns,  hotels, 

on  her.  That  she  had  before  its  adoption.  .  .  .  The  Amendment  did  not 
add  to  the  privileges  and  immunities  of  a  citizen.  It  simply  furnished  an 
additional  guaranty  for  the  protection  of  such  as  he  already  had.  Xo  new 
voters  were  necessarily  made  by  it.  Indirectly  it  may  have  had  that  effect, 
because  it  may  have  increased  the  number  of  citizens  entitled  to  suffrage 
under  the  Constitution  and  laws  of  the  States,  but  it  operates  for  this  pur- 
pose, if  at  all,  through  the  States  and  the  state  laws,  and  not  directly  upon 
the  citizen.  It  is  clear,  therefore,  we  think,  that  the  Constitution  has  not 
added  the  right  of  suffrage  to  the  privileges  and  immunities  of  citizenship  as 
they  existed  at  the  time  it  was  adopted."  Continuing  the  court  showed  that 
in  no  case  had  the  suffrage  in  the  States  been  considered  as  co-extensive  with 
citizenship,  and  concluded:  "Certainly,  if  the  courts  can  consider  any  ques- 
tion as  settled,  this  is  one.  For  nearly  ninety  years  the  people  have  acted 
upon  the  idea  that  the  Constitution,  when  it  conferred  citizenship  did  not 
necessarily  confer  the  right  of  suffrage." 


Federal  Supervision  of  State  Activities.  187 

railways,  theaters,  etc.,  as  that  enjoyed  by  white  persons.  The 
importance  of  this  act  lay  in  the  fact  that  by  passing  it  Congress 
indicated  that  it  interpreted  the  Fourteenth  Amendment  as  giv- 
ing it  power  not  simply  to  punish  persons  who  should  deprive 
others  of  any  of  the  rights  mentioned  in  that  Amendment,  but  as 
empowering  itself  to  determine  specifically  what  those  rights 
should  be.  If  this  were  to  be  accepted  as  the  correct  interpreta- 
tion of  the  power  of  Congress  under  this  Amendment,  it  was  clear 
that  the  reserved  powers  of  the  States  would  henceforth  be  at  the 
mercy  of  the  federal  legislative  body;  for  thus  the  way  would 
be  opened  to  Congress,  should  it  see  fit,  to  convert  by  its  statutes 
all  private  rights  into  federal  rights  and  as  such  exclude  them 
from  state  regulation  or  violation. 

In  the  Civil  Rights  Cases,12  decided  in  1883,  the  court  laid 
down,  authoritatively  and  finally,  the  doctrine  that  it  is  not  within 
the  legislative  power  of  Congress  to  define  what  are  the  civil 
rights  of  individuals,  and  to  affix  and  enforce  penalties  for  their 
denial  by  private  persons.  Hence  the  court  held  unconstitutional 
and  void  those  portions  of  the  Civil  Rights  Act  of  1875  which 
attempted  to  do  this.  "  Individual  invasion  of  individual  rights," 
the  court  say,  "  is  not  the  subject-matter  of  the  Amendment.  It 
has  a  deeper  and  broader  scope.  It  nullifies  and  makes  void  all 
state  legislation  and  state  action  of  every  kind,  which  impairs  the 
privileges  and  immunities  of  citizens  of  the  United  States,  or  in- 
jures them  in  life,  liberty,  or  property  without  due  process  of 
law,  or  which  denies  to  them  the  equal  protection  of  the  laws.  It 
not  only  does  this,  but  in  order  that  the  national  will,  thus  de- 
clared, may  not  be  a  mere  brutum  fulmen,  the  last  section  of  the 
Amendment  invests  Congress  with  power  to  enforce  it  by  appro- 
priate legislation.  To  enforce  what  ?  To  enforce  the  prohibition. 
.  .  .  It  does  not  authorize  Congress  to  create  a  code  of  munici- 
pal law  for  the  regulation  of  private  rights ;  but  to  provide  modes 
of  redress  against  the  operation  of  state  laws,  and  the  action  of 
state  officers,  executive  or  judicial,  when  these  are  subversive  of 
the  fundamental  rights  specified  in  the  Amendment."     The  im- 

»  109  U.  S.  3;  3  Sup.  Ct.  Rep.  18;  27  L.  ed.  835. 


1S8  United  States  Constitutional  Law. 

portance  of  the  doctrine  declared  in  the  Civil  Eights  Cases  is  seen 
when  the  results  that  would  have  followed  from  a  different  con- 
struction of  the  Amendment  are  considered.  If  the  Civil  Eights 
Act  had  been  held  appropriate  for  enforcing  the  prohibitions  of 
that  article  it  would  have  been,  as  the  court  observes,  difficult  to 
set  limits  to  the  powers  of  Congress.  With  equal  authority,  that 
body  would  have  the  right  to  enact  a  detailed  code  of  laws  for  the 
enforcement  and  protection  of  all  the  rights  of  life,  liberty,  and 
property,  and  itself  to  prescribe  what  should  constitute  due 
process  of  law  in  every  possible  case.13 

It  will  have  been  noticed  that  the  doctrine  of  the  Civil  Eights 
Cases  depended  in  large  measure  upon  the  assertion  that  the  pro- 
hibitions of  the  Fourteenth  Amendment  were  directed  exclusively 
against  state  acts,  that  is,  acts  authoritatively  sanctioned  by  the 
States  as  such,  or  officially  performed  by  their  agents,  and  that 
they  had  not  reference  to  the  acts  of  private  individuals.  The 
doctrine  had  already  been  established  in  a  line  of  cases  decided 
prior  to  the  Civil  Eights  Cases. 

In  Strauder  v.  West  Virgina14  it  was  held  that  a  state  law 
which  excluded  negroes  from  jury  service  was  unconstitutional  as 
a  denial  to  members  of  that  race  of  the  equal  protection  of  the 
laws.  In  Virginia  v.  Eives15  the  question  was  not  as  to  the  ex- 
istence of  a  state  law  excluding  negroes  from  jury  service,  but  as 

13  As  construed  in  the  Civil  Rights  Cases  it  is  to  be  noted  that  the  federal 
legislative  power  granted  by  the  Fourteenth  Amendment  is  narrower  than 
that  granted  by  the  enforcement  clause  of  the  Thirteenth  Amendment.  This 
distinction  the  court  in  its  majority  opinion  in  the  Civil  Rights  Cases  point 
cut  in  the  following  language:  "This  [Thirteenth]  Amendment,  as  well  as 
the  Fourteenth,  is  undoubtedly  self -executing  without  any  ancillary  legisla- 
tion, so  far  as  its  terms  are  applicable  to  any  existing  state  of  circumstance*. 
JJy  its  own  unaided  force  and  effect,  it  abolished  slavery  and  established  uni- 
versal freedom.  Still  legislation  may  be  necessary  and  proper  to  meet  all  the 
various  cases  and  circumstances  to  be  affected  by  it.  and  to  prescribe  proper 
modes  of  redress  for  its  violation  in  letter  or  spirit.  And  such  legislation 
may  be  primary  and  direct  in  its  character;  for  the  Amendment  is  nut  a  mere 
prohibition  of  state  laws  establishing  or  upholding  slavery,  but  an  absolute 
declaration  that  slavery  or  involuntary  servitude  shall  not  exist  in  any  part 
of  the  United  States." 

n  100  U.  S.  303;   25  L.  ed.  6<34. 

15  100  V.  S.  313;  25  L.  ed.  667. 


Federal  Supervision  of  State  Activities.  189 

to  the  administration  of  a  law,  not  in  terms  discriminative,  in 
such  a  way  as  to  exclude  negroes  from  juries.  This  suit  was 
sought  to  be  removed  into  the  federal  courts  under  the  provision 
of  section  641  of  the  Revised  Statutes.16  "Without  deciding 
whether  or  not  Congress  had,  under  the  enforcement  clause  of  the 
Fourteenth  Amendment,  the  power  to  grant  relief  in  cases  such 
as  that  presented  by  the  petitioner,  the  Supreme  Court  held  that 
the  suit  was  not  within  the  terms  of  the  statute. 

In  Ex  parte  Virginia3'  a  somewhat  different  state  of  facts  was 
presented.  Here  there  was  no  state  law  the  constitutionality  of 
which  was  questioned,  but  a  judge  of  a  state  court  charged  by  the 
law  of  that  State  with  the  duty  of  selecting  jurors  indicted  in  a 
federal  court  for  excluding  from  the  grand  and  petit  jury  list  a 
certain  individual  because  of  his  race  or  color,  in  violation  of  a 
provision  of  the  Act  of  Congress  of  1S75.  Upon  a  petition  of  the 
accused  to  the  Supreme  Court  of  the  United  States  for  a  writ  of 
habeas  corpus  or  a  writ  of  certiorari  to  bring  up  the  record  of  the 
lower  court  in  order  that  he  might  be  dismissed,  the  Supreme 
Court  denied  the  writs,  holding,  in  effect,  that  this  act  of  the 
judge,  involving  no  necessary  exercise  of  judicial  discretion,  and 
committed  by  him  in  his  official  capacity  as  judge,  was  an  act  of 
the  State  which  he  represented,  and  as  such  came  within  the  pro- 
hibition of  the  Fourteenth  Amendment.  The  opinion  declares: 
"  The  prohibitions  of  the  Fourteenth  Amendment  are  addressed 
to  the  States.  The  constitutional  Amendment  was  ordained  for 
a  purpose.  It  was  to  secure  equal  rights  to  all  persons,  and,  to 
insure  to  all  persons  the  enjoyment  of  such  rights,  power  was 

is  Sec.  C41.  "When  any  civil  suit  or  criminal  prosecution  is  commenced  in 
any  state  court  for  any  cause  whatsoever  against  any  person  who  is  denied,  or 
cannot  enforce,  in  the  judicial  tribunals  of  the  State,  or  in  any  part  of  the 
State  where  such  prosecution  is  pending,  any  right  secured  to  him  by  any  law 
providing  for  the  equal  rights  of  citizens  of  the  United  States,  or  of  all 
persons  within  the  jurisdiction  of  the  United  States,  .  .  .  such  suit  or 
prosecution  may,  upon  the  petition  of  each  defendant,  filed  in  said  court  at 
any  time  before  the  trial,  or  final  hearing  of  the  case,  stating  the  facts,  and 
verified  by  oath,  be  removed  before  trial  into  the  next  circuit  court  of  the 
United  States  to  be  held  in  the  district  where  it  is  pending." 

17  100  U.  S.  339;  25  L.  ed.  676. 


190  United  States  Constitutional  Law. 

given  to  Congress  to  enforce  its  provisions  by  appropriate  legis- 
lation. Such  legislation  must  act  upon  persons,  not  upon  the 
abstract  thing  denominated  a  State,  but  upon  the  persons  who  are 
the  agents  of  the  State  in  the  denial  of  the  rights  which  were  in- 
tended to  be  secured.  Such  is  the  Act  of  March  1,  1875,  18  Stat, 
at  L.  336,  and  we  think  it  was  fully  authorized  by  the  Constitu- 
tion  We  do  not  perceive  how  holding  an  office  under 

a  State  and  claiming  to  act  for  the  State  can  relieve  the  holder 
from  the  obligation  to  obey  the  Constitution  of  the  United 
States,  or  take  away  the  power*  of  Congress  to  punish  his 
disobedience.18 

18  In  this  case  Justice  Field  rendered  a  dissenting  opinion,  in  which  he 
assumed,  in  the  first  place,  that  so  much  of  the  Act  of  1875  as  attempted 
to  regulate  the  selection  of  jurors  in  state  courts  was  unconstitutional  and 
void;  in  the  second  place,  that  the  selection  of  jurors  by  the  judge  was  a 
judicial  act  involving  an  exercise  of  discretion  and  judgment,  and,  therefore, 
not  subject  to  enforcement  in  a  particular  manner  by  statute  or  mandamus, 
in  any  event;  and,  in  the  third  place,  that  the  right  to  serve  as  a  juror  is  a 
political  and  not  a  civil  right,  and  therefore  not  one,  the  equal  enjoyment  of 
which  is  secured  to  all  by  the  Fourteenth  Amendment.  With  reference  to  the 
purpose  for  which  the  war  amendments  had  been  adopted  Justice  Field  said: 
"  They  do  not,  in  terms,  contravene  or  repeal  anything  which  previously 
existed  in  the  Constitution  and  those  Amendments.  Aside  from  the  extinction 
of  slavery,  and  the  declaration  of  citizenship,  their  provisions  are  merely 
prohibitory  upon  the  States;  and  there  is  nothing  in  their  language  or  purpose 
which  indicates  that  they  are  to  be  construed  or  enforced  in  any  way  different 
from  that  adopted  with  reference  to  previous  restraints  upon  the  States. 
The  provision  authorizing  Congress  to  enforce  them  by  appropriate  legislation 
does  not  enlarge  their  scope,  nor  confer  any  authority  which  would  not  have 
existed  independently  of  it.  No  legislation  would  be  appropriate  which  should 
contravene  the  express  prohibitions  upon  Congress  previously  existing,  as,  for 
instance,  that  it  should  not  pass  a  bill  of  attainder  or  an  ex  post  facto  law. 
Xor  would  legislation  be  appropriate  which  should  conflict  with  the  implied 
prohibitions  upon  Congress.  They  are  as  obligatory  as  the  express  prohibi- 
tions. The  Constitution,  as  already  stated,  contemplates  the  existence  and 
independence  of  the  States  in  all  their  reserved  powers.  ...  I  cannot  think 
I  am  mistaken  in  saying  that  a  change  so  radical  in  the  relation  between  the 
federal  and  state  authorities,  as  would  justify  legislation  interfering  with  the 
independent  action  of  the  different  departments  of  the  state  governments,  in 
all  matters  over  which  the  States  retain  jurisdiction,  was  never  contemplated 
by  the  recent  Amendments.  The  people,  in  adopting  them,  did  not  suppose 
that  they  were  altering  the  fundamental  theory  of  their  dual  system  of  gov- 
ernments." 


Federal  Supervision  of  State  Activities.  191 

These  general  principles  —  that  the  prohibitions  of  the  Amend- 
ment are  upon  the  State  and  not  upon  individuals ;  that  Congress 
has  no  primary  and  direct  legislative  authority  to  define  and  en- 
force the  rights  guaranteed  by  the  Amendment;  that  the  general 
"police  powers"  are  still  possessed  by  the  States;  —  have  not 
been  departed  from  by  the  court  in  subsequent  cases.  In  Logan 
v.  United  States,19  decided  in  1892,  the  court,  after  a  review  of 
previous  adjudications,  say:  "  The  whole  scope  and  effect  of  this 
series  of  decisions  is  that,  .  .  .  certain  fundamental  rights, 
recognized  and  declared,  but  not  granted  or  created  in  some  of  the 
Amendments  to  the  Constitution,  are  thereby  guaranteed  only 
against  violation  or  abridgement  by  the  United  States  or  by  the 
States,  as  the  case  may  be,  and  cannot,  therefore,  be  affirmatively 
enforced  by  Congress  against  unlawful  acts  of  individuals."  The 
court,  however,  add  the  cautionary  remark  that  "  every  right  cre- 
ated by,  arising  under  or  dependent  upon  the  Constitution  of  the 

Some  commentators  have  found  difficulty  in  harmonizing  the  decision  in 
Ex  parte  Virginia  with  that  rendered  in  Virginia  v.  Rives.  Tims,  for  example, 
Wise  in  his  Treatise  on  American  Citizenship,  p.  205,  says:  "It  is  impossible 
to  reconcile  the  decision  in  Ex  parte  Virginia  with  the  others.  ...  As  they 
stand  the  two  cases  of  Virginia  v.  Rives  and  Ex  parte  Virginia  present  an 
amusing  line  of  demarcation.  In  Virginia  v.  Rives  the  misconduct  of  a 
sheriff  in  the  method  of  summoning  a  jury  was  declared  not  to  be  the  action 
of  the  State  and  to  be  remediable  on  appeal.  In  the  case  of  Ex  parte  Virginia, 
decided  on  the  same  day,  the  misconduct  of  a  judge  in  not  summoning  a 
proper  jury  was  held  to  be  the  action  of  the  State,  remediable  by  the  indict- 
ment of  the  judge  although  the  State  had  done  no  wrong.  The  only  legal 
principle  to  be  deduced  from  the  two  decisions  is  that  the  boundary  line 
between  one  officer  who  is  the  State  and  an  officer  who  is  not  the  State,  lies 
somewhere  between  a  sheriff  and  a  judge." 

There  is,  however,  no  real  incongruity  in  the  cases,  and  Wise's  difficulty 
arises  from  an  imperfect  understanding  of  the  actual  point  decided  in  Virginia 
v.  Rives.  In  that  case,  it  was  held,  as  we  have  seen,  simply  that  the  case  did 
not  come  within  the  section  641  of  the  Revised  Statutes,  under  which  removal 
had  been  had  from  the  state  to  the  federal  courts.  Thus,  in  effect,  all  the 
court  decided  was,  not  that  Congress  had  no  power  under  the  Fourteenth 
Amendment  to  punish  or  correct  such  an  act  as  that  of  the  sheriff  complained 
of,  but  that  it  had  not,  in  fact,  so  legislated.  In  Ex  parte  Virginia  the  act 
complained  of  was  construed  to  be  within  the  scope  of  the  prohibitions  of  the 
Act  of  Congress  of  1875. 

1M44  U.  S.  263;  12  Sup.  Ct.  Rep.  617;  36  L.  ed.  429. 


192  United  States  Coxstitutioxae  Law. 

United  States,  may  be  protected  and  enforced  by  Congress  by 
such  means  and  in  such  manner  as  Congress,  in  the  exercise  of 
the  correlative  duty  of  protection,  or  of  the  legislative  powers 
conferred  upon  it  by  the  Constitution  may  in  its  discretion  seem 
most  eligible  and  best  adapted  to  attain  the  object." 

See  also  in  James  v.  Bowman,20  decided  as  late  as  1903,  the 
cases  are  re-examined  and  the  principles  declared  in  them  fully 
approved. 

Although  by  the  decision  in  the  Slaughter  House  and  subse- 
quent cases  in  the  Supreme  Court,  the  command  laid  upon  the 
States  to  respect  federal  privileges  and  immunities  has  thus  been 
shorn  of  all  but  declaratory  significance,  and  the  general  police 
powers  confirmed  in  the  Commonwealths,  the  other  prohibitions 
of  the  first  section  of  the  Fourteenth  Amendment  have  been  so 
construed  by  the  Supreme  Court  as  to  give  to  the  Federal  Govern- 
ment a  very  extensive  supervisory  jurisdiction  over  state  legisla- 
tion which  it  did  not  possess  prior  to  1868.  Whenever  a  claim 
has  been  made  that  a  state  law  has  worked  a  deprivation  of  life, 
liberty,  or  property  without  due  process  of  law,  or  has  resulted 
in  a  denial  to  any  person  of  the  equal  protection  of  the  laws,  the 
federal  courts  have  assumed  jurisdiction  and  declared  such  stat- 
utes void.  Illustrations  of  this  federal  supervisory  power  will 
appear  throughout  this  treatise. 

It  is  true  that,  in  the  Slaughter  House  Cases,  the  court  declared, 
relative  to  the  clause  providing  for  the  equal  protection  of  the 
laws :  "  We  doubt  very  much  whether  any  action  of  a  State  not 
directed  by  way  of  discrimination  against  the  negroes  as  a  class, 
or  on  account  of  their  race,  will  ever  be  held  to  come  within 
the  purview  of  this  provision,"  but  this  obiter  dictum  has  been 
repeatedly  overruled. 

20  190  U.  S.  127;  23  Sup.  Ct.  Rep.  678;  47  L.  ed.  970,  as  to  the  power  of 
Congress  to  provide  for  the  punishment  of  individuals  interfering  with,  or 
conspiring  to  interfere  with  the  exercise  by  others  of  rights  created  by  or 
dependent  upon  the  federal  constitution  or  laws,  see  Ex  parte  Yarbrough,  110 
U.  S.  651;  4  Sup.  Ct.  Rap.  1.52:  28  L.  ed.  274:  V.  S.  v.  Waddell.  112  U.  S. 
76;  5  Sup.  Ct.  Rep.  35 ;  28  L.  ed.  673;  Motes  v.  U.  S.,  178  U.  S.  458;  20  Sup. 
Ct.  Rep.  993;  44  L.  ed.  1150. 


Federal  Supervision  of  State  Activities.  193 

§  90.  Summary. 

By  way  of  resume  we  may  say  that,  as  interpreted  by  the 
Supreme  Court,  the  adoption  of  the  Fourteenth  Amendment  has 
not  brought  about  any  fundamental  change  in  our  constitutional 
system.  Xo  new  subjects  have  been  brought  within  the  sphere  of 
direct  control  of  the  Federal  Government.  No  new  privileges 
and  immunities  of  federal  citizenship  have  been  created  or  recog- 
nized. To  Congress  has  been  given  no  new  direct  primary,  legis- 
lative power.  It  has  not  been  authorized  by  the  Amendment  to 
determine  and  define  the  privileges  and  immunities  of  federal 
citizens,  nor  to  define  and  affirmatively  to  provide  for  the  protec- 
tion of  the  rights  of  life,  liberty,  and  property,  nor  by  direct 
legislation  to  enumerate  and  describe  the  privileges  which  shall 
constitute  the  equal  protection  of  the  laws.  The  only  legislative 
power  granted  to  Congress  by  the  Amendment,  is  the  power  to 
provide  modes  of  relief  in  cases  where  the  States  have  deprived 
individuals  or  corporations  of  life,  liberty,  or  property  without 
due  process  of  law,  or  denied  to  anyone  within  their  jurisdiction 
the  equal  protection  of  the  laws.  The  supervisory  powers  of  the 
federal  courts  has  been  enormously  increased;  as,  by  the  Amend- 
ment, they  may  examine  every  claim  of  illegal  violations  by  States 
of  the  prohibitions  laid  upon  them  by  the  Amendment,  and  where 
the  claim  is  sustained  grant  the  necessary  relief,  either  by  the 
issuance  of  the  appropriate  writ,  or  by  holding  void  the  offending 
state  laws.  In  fine,  then,  the  Fourteenth  Amendment  has  oper- 
ated rather  as  a  limitation  upon  the  powers  of  the  States  than  as 
a  grant  of  additional  powers  to  the  General  Government. 
13 


CHAPTER  XII. 

INTERSTATE  RELATIONS;  FULL  FORCE  AND  CREDIT  CLAUSE. 

§  91.  States  Independent  of  One  Another. 

In  the  chapters  which  have  been  gone  before  the  constitutional 
relations  which  exist  between  the  Federal  Government  upon  the 
one  side  and  the  State  upon  the  other  side  have  been  considered. 
In  the  present  chapter  a  description  will  be  given  of  the  relations 
which  exist  between  the  several  States. 

Except  as  otherwise  specifically  provided  by  the  federal  Con- 
stitution, the  States  of  the  American  Union,  when  acting  within 
the  spheres  of  government  reserved  to  them,  stand  toward  one 
another  as  independent  and  wholly  separated  States.  The  laws 
of  the  'State  have  no  force,  and  their  officials  have  here  no  public 
authority,  outside  of  their  own  territorial  boundaries.  As  to  all 
these  matters  their  relations  inter  se  are  governed  by  the  general 
principles  of  Private  International  Law  or,  as  otherwise  termed, 
the  Conflict  of  Laws. 

During  the  colonial  period  the  judgments  of  the  courts  of  the 
colonies  were,  as  to  one  another,  strictly  foreign  judgments.  That 
is,  they  could  be  impeached  for  fraud  or  prejudice,  and  their 
merits  re-examined.  The  inconvenience  of  this  state  of  affairs 
was  soon  recognized,  and  in  the  Articles  of  Confederation  it  was 
provided  that  "  Full  faith  and  credit  shall  be  given  in  each  of 
these  States  to  the  records,  acts,  and  judicial  proceedings  of  the 
courts  and  magistrates  of  every  other  State."1  The  important 
difference  between  this  provision  and  the  corresponding  one  in  the 
present  Constitution  is  that  in  the  latter  Congress  is  given  au- 
thority to  fix  by  statute  the  manner  in  which  these  acts,  records, 
and  proceedings  shall  be  proved  and  to  determine  the  effect  that 
shall  be  given  them. 

i  Article  IV. 

[194] 


Interstate  Kelations  :  Full  Force  and  Credit  Clause.    195 

§  92.  Congressional  Legislation. 

By  a  law  passed  in  1790  Congress  provided:  "  That  the  acts 
of  the  legislature  of  the  several  States  shall  be  authenticated  by 
having  the  seal  of  their  respective  States  affixed  thereto;  that  the 
records  and  judicial  proceedings  of  the  courts  of  any  State  shall 
be  proved  or  admitted  in  any  court  within  the  United  States  by 
the  attestation  of  the  clerk,  and  the  seal  of  the  court  annexed,  if 
there  be  a  seal,  together  with  a  certificate  of  the  judge,  chief 
justice,  or  presiding v magistrate,  as  the  case  may  be,  that  the 
said  attestation  is  in  due  form.  And  the  said  records  and  judicial 
proceedings  authenticated  as  aforesaid  shall  have  such  faith  and 
credit  given  to  them  in  every -court  within  the  United  States,  as 
they  have  by  law  or  usage  in  the  courts  of  the  State  from  whence 
the  said  records  are  or  shall  be  taken."  2 

In  1809  this  act  was  supplemented  by  one  which,  after  pro- 
viding for  the  authentication  of  other  than  judicial  records,  de- 
clared, in  its  second  section:  "And  be  it  further  enacted,  that 
all  the  provisions  of  this  act,  and  the  act  to  which  this  is  a  supple- 
ment [Act  of  1790]  shall  apply  as  well  as  to  the  public  acts, 
records,  office  books,  judicial  proceedings,  courts,  and  offices  of 
the  respective  territories  of  the  United  States  and  countries  sub- 
ject to  the  jurisdiction  of  the  United  States,  as  to  the  public  acts, 
records,  office  books,  judicial  proceedings,  courts  and  officers  of 
the  several  States."  3 

In  Mills  v.  Duryee4  decided  in  1813,  the  Supreme  Court,  con- 
struing these  acts  held  that  by  them  Congress  had  not  only  pro- 
vided for  the  admission  of  authenticated  judgments  of  a  State 
as  evidence  in  the  courts  of  the  other  States  in  the  Union,  but 
that  it  had,  in  execution  of  the  constitutional  provision,  declared 
that  they  should  be  conclusive  evidence  of  all  matters  properly 
adjudicated  therein. 

2  i  U.  S.  Stat,  at  L.  122. 

3  2  U.  S.  Stat,  at  L.  298.  These  two  sections  are  united  in  section  905  of 
the  Revised  Statutes.  In  a  law  enacted  in  1895  it  is  provided  by  Congress 
that:  "The  pamphlet  copies  of  the  statutes  and  the  bound  copies  of  the  Acts 
of  each  Congress  shall  be  legal  evidence  of  the  laws  therein  contained  in  all 
the  courts  of  the  United  States  and  of  the  several  States  therein."  Section  73, 
Act  of  Jan.  2.  Ch.  23   (28  Stat,  at  L.  601). 

<7  Cr.  481;  3  L.  ed.  411. 


196  United  States  Constitutional  Law. 

This  full  faith  and  credit  clause,  it  is  to  he  observed,  has  refer- 
ence only  to  the  States,  and  not  to  the  Territories  or  to  the  Dis- 
trict of  Columbia.  Therefore  it  has  been  decided  that  the  act 
of  1804,  in  as  far  as  it  has  reference  to  the  Territories  and  to  the 
District  of  Columbia,  rests,  for  its  constitutionality,  upon  other 
clauses  of  the  Constitution.  Thus  in  Einbry  v.  Palmer5  the  court 
say:  "  So  far  as  this  statutory  provision  relates  to  the  effect  to 
be  given,  to  the  judicial  proceedings  of  the  States,  it  is  founded 
on  article  IV,  section  I,  of  the  Constitution,  which,  however,  does 
not  extend  to  the  other  cases  covered  by  the  statute.  The  power 
to  prescribe  what  effect  shall  be  given  to  the  judicial  proceedings 
of  the  courts  of  the  United  States  is  conferred  by  other  provisions 
of  the  Constitution,  such  as  those  which  declare  the  extent  of  the 
judicial  power  of  the  United  States,  which  authorize  all  legisla- 
tion necessary  and  proper  for  executing  the  powers  vested  by  the 
Constitution  in  the  Government  of  the  United  States,  ot  in  any 
department  or  officer  thereof,  and  which  declare  the  supremacy 
of  the  authority  of  the  Xational  Government  within  the  limits 
of  the  Constitution.  As  part  of  its  general  authority,  the  power 
to  give  effect  to  the  judgments  of  its  courts  is  co-extensive  with 
itB  territorial  jurisdiction.  That  the  Supreme  Court  of  the  Dis- 
trict of  Columbia  is  a  court  of  the  United  States,  results  from 
the  right  which  the  Constitution  has  given  to  Congress  of  exclu- 
sive legislation  over  the  District.  Accordingly,  the  judgments 
of  the  courts  of  the  United  States  have  invariably  been  recog- 
nized as  upon  the  same  footing,  so  far  as  concerns  the  obligation 
created  by  them,  with  domestic  judgments  of  the  States,  wher- 
ever rendered  and  wherever  sought  to  be  enforced." 

The  same  reasoning  that  in  Embry  v.  Palmer  seems  to  support 
the  power  of  Congress  to  give  to  judgments  rendered  in  the  Dis- 
trict of  Columbia  full  force  and  credit  in  the  States,  is  sufficient 
to  support  its  power  to  give  equal  force  in  the  States  to  judgments 
rendered  in  the  Territories  and  insular  possessions  of  the  United 
States,  and  vice  versa  as  to  state  judgments  sued  upon  in  the 
Territories  or  in  the  insular  possessions. 

5  107  U.  S.  3;  2  Sup.  Ct.  Rep.  25;  27  L.  ed.  346. 


INTERSTATE  RELATIONS:  FULL   FORCE  AM)  CREDIT  CLAUSE.      197 

§  93.   Federal  Judgments  and  Decrees. 

In  numerous  cases  it  has  been  held  that  full  force  and  credit 
is  to  be  given  to  judgments  of  federal  courts  obtained  in  one 
State  or  Territory  when  sought  to  be  enforced  in  the  federal  courts 
in  another  State  or  Territory,  or  the  District  of  Columbia.  This 
is  due  to  the  fact  that,  as  the  Supreme  Court  say  in  Claflin  v. 
Houseman,6  "  The  United  States  is  not  a  foreign  sovereignty  as 
regards  the  several  States,  but  is  a  concurrent,  and,  within  its 
jurisdiction,  a  paramount  sovereignty.  Every  citizen  of  a  State 
is  a  subject  of  two  distinct  sovereignties,  having  concurrent  juris- 
diction in  the  State,  concurrent  as  to  place  and  persons,  though 
distinct  as  to  subject-matter.  Legal  or  equitable  rights,  acquired 
under  either  system  of  laws,  may  be  enforced  in  any  court  of 
either  sovereignty  competent  to  hear  and  determine  such  kinds 
of  rights  and  not  restrained  by  its  Constitution  in  the  exercise 
of  such  jurisdiction.  Thus,  a  legal  or  equitable  right  acquired 
under  state  laws  may  be  prosecuted  in  the  stare  courts,  and  also, 
if  the  parties  reside  in  diiferent  States,  in  the  federal  eourts.  So 
rights,  whether  legal  or  equitable,  acquired  under  the  laws  of 
the  United  States,  may  be  prosecuted  in  the  United  States  eourts, 
or  in  the  state  eourts.  competent  to  decide  rights  of  the  like 
character  and  class;  subject,  however,  to  this  qualification,  that 
where  a  right  arises  under  a  law  of  the  United  States,  Congress 
may,  if  it  sees  fit,  give  to  the  federal  courts  exclusive  jurisdiction." 

§  94.  Full  Faith  and  Credit  Clause  Applies  only  to  Civil  Judg- 
ments and  Decrees. 
It  seems  scarcely  necessary  to  say  that  the  "  full  force  and 
credit ''  clause  has  reference  only  to  civil  judgments.  Xo  State, 
it  has  been  held,  is  by  this  provision  compelled  to  lend  its  aid 
in  the  enforcement  of  the  penal  laws  of  another.  This  was 
definitely  determined  in  Wisconsin  v.  Pelican  Insurance  Com- 
pany.7 In  this  case  original  suit  had  been  brought  in  the  Su- 
preme Court  of  the  United  States  by  the  State  of  Wisconsin  upon 

6  03  U.  S.  130:  23  L.  ed.  833. 

7  127  U.  S.  265 ;  8  Sup.  Ct.  Rep.  1370 ;.  32  L.  ed.  239. 


198  United  States  Constitutional  Law. 

a  judgment  obtained  in  its  own  courts  against  an  insurance 
company,  a  Louisiana  corporation,  for  penalties  imposed  by  a 
statute  of  Wisconsin  for  not  making  returns  to  the  insurance 
commissioners  of  the  State.  The  federal  court  held  that  the 
grant  to  it  of  original  jurisdiction  in  suits  between  a  State  and 
citizens  of  another  State,  though  given  in  general  terms,  was  not 
to  be  construed  to  extend  to  actions  brought  by  a  State,  to  enforce 
even  indirectly  in  another  jurisdiction  a  provision  of  its  own 
penal  law.  The  court  say:  "The  grant  is  of  'judicial  power/ 
and  was  not  intended  to  confer  upon  the  courts  of  the  LTnited 
States  jurisdiction  of  a  suit  or  prosecution  by  the  one  State,  of 
such  a  nature  that  it  could  not,  on  the  settled  principles  of  public 
and  international  law,  be  entertained  by  the  judiciary  of  the 
other  State  at  all.  .  .  .  The  rules  that  the  courts  of  no  country 
execute  the  penal  laws  of  another  applies  not  only  to  prosecu- 
tions and  sentences  for  crimes  and  misdemeanors,  but  to  all  suits 
in  favor  of  the  State  for  the  recovery  of  pecuniary  penalties  for 
any  violation  of  statutes  for  the  protection  of  its  revenue,  or 
other  municipal  laws,  and  to  all  judgments  for  such  penalties. 
If  this  were  not  so,  all  that  would  be  necessary  to  give  ubiquitous 
effect  to  a  penal  law  would  be  to  put  the  claim  for  a  penalty  into 
the  shape  of  a  judgment." 

§  95.  Full  Faith  and  Credit  Clause  Establishes  a  Rule  of  Evi- 
dence. 

The  application  of  the  foregoing  rule,  the  court  go  on  to  say, 
is  not  affected  by  the  full  faith  and  credit  clause.  That  clause, 
and  the  acts  of  Congress  under  it,  it  is  declared,  establish  a  rule 
of  evidence  rather  than  of  jurisdiction.  "  While  they  make  the 
record  of  a  judgment,  rendered  after  due  notice  in  one  State, 
conclusive  evidence  in  the  courts  of  another  State  or  of  the 
United  States,  of  the  matter  adjudged,  they  do  not  affect  the 
jurisdiction  either  of  the  court  in  which  the  judgment  is  ren- 
dered or  of  the  court  in  which  it  is  offered  in  evidence.  Judg- 
ments recovered  in  one  State  of  the  Union,  when  proved  in  the 
courts  of  another  government,  whether  state  or  national,  within 


INTERSTATE  RELATIONS  :  FULL  FoKCE  AND  CREDIT  CLAUSE.   199 

the  United  States,  differ  from  judgments  recovered  in  a  foreign 
country  in  no  other  respect  than  in  not  being  re-examinable  on 
their  merits,  nor  impeachable  for  a  fraud  in  obtaining  them,  if 
rendered  by  a  court  having  jurisdiction  of  the  cause  and  of  the 
parties.  In  the  words  of  Justice  Story,  .  .  .  '  the  Constitu- 
tion did  not  mean  to  confer  any  new  power  upon  the  States,  but 
simply  to  regulate  the  effect  of  their  acknowledged  jurisdiction 
over  persons  and  things  within  their  territory.  It  does  not  make 
the  judgments  of  other  States  domestic  judgments  to  all  intents 
and  purposes,  but  only  gave  a  general  validity,  faith,  and  credit 
to  them  as  evidence.  No  execution  can  issue  upon  such  judg- 
ments without  a  new  suit  in  the  tribunals  of  other  States.  And 
they  enjoy  not  the  right  of  priority  or  lien  which  they  have  in 
the  State  where  they  are  pronounced,  but  that  only  which  the 
lex  fori  gives  to  them  by  its  own  laws  in  their  character  of 
foreign  judgments.' " 

As  being  simply  evidence,  judgments  of  the  courts  of  one 
State,  when  sued  upon  in  another  State,  are  subject,  as  regards 
procedure  and  remedies,  to  the  law  of  the  latter  State.  For 
example,  the  statute  of  limitations  of  the  State  where  suit  is 
brought  is  applied  even  though  it  provides  a  shorter  term  of 
years  than  that  existing  in  the  State  in  which  the  judgment  was 
originally  obtained.8 

It  has  been  held  in  numerous  cases  that  each  State  of  the  Union 
may  enforce  in  its  own  courts  which  have  jurisdiction  of  the 
parties  and  subject-matters,  civil  rights  of  action  depending  solely 
upon  the  statutes  of  another  State,  provided  there  be  no  local 
policy  of  the  forum  inconsistent  therewith.  Thus  in  Dennick  v. 
Central  R.  R.  Co.9  with  reference  to  a  suit  for  damages  brought 
in  New  York  under  an  act  of  New  Jersey,  the  court  say :  "  It 
is  scarcely  contended  that  the  act  belongs  to  the  class  of  criminal 
laws  which  can  only  be  enforced  by  the  courts  of  the  State  where 
the  offense  was  committed,  for  it  is,  though  a  statutory  remedy, 

sMcEImoyle  v.  Cohen,  13  Pet.  312;  10  L.  ed.  177;  Bacon  v.  Howard,  20  How. 
22;  15  L.  ed.  811. 

9  103  U.S.  11;  20  L.  ed.  439. 


200  United  States  Constitutional  Law. 

a  civil  action  to  recover  damages  for  a  civil  injury.  It  is,  indeed, 
a  right  dependent  solely  on  the  statute  of  the  State,  but  when 
the  act  is  done  for  which  the  law  says  the  person  shall  be  liable 
and  the  action,  by  which,  the  remedy  is  to  be  enforced,  is  a  per- 
sonal and  not  a  real  action,  and  is  of  that  character  which  the 
law  recognizes  as  transitory  and  not  local,  we  cannot  see  why  the 
defendant  may  not  be  held  liable  in  any  court  to  whose  jurisdic- 
tion he  can  be  subjected  by  personal  process  or  by  voluntary 
appearance,  as  was  the  case  here.  It  is  difficult  to  understand 
how  the  nature  of  the  remedy  or  the  jurisdiction  of  the  courts 
to  enforce  it  is  in  any  manner  dependent  on  the  question  whether 
it  is  a  statutory  right  or  a  common  law  right.  Wherever,  by 
either  the  common  law  or  the  statute  law  of  a  State,  a  right  of 
action  has  become  fixed,  and  a  legal  liability  incurred,  that  lia- 
bility may  be  enforced  and  the  right  of  action  pursued  in  any 
court  which  has  jurisdiction  of  such  matters  and  can  obtain  juris- 
diction of  the  parties."  10 

In  Slater  v.  Mexican  Xarional  R.  E.  Co.,n  applying  the  same 
doctrine,  the  court  say:  "When  such  a  liability  is  enforced  in 
a  jurisdiction  foreign  to  the  place  of  the  wrongful  act,  obviously 
that  does  not  mean  that  the  act  in  any  degree  is  subject  to  the  lex 
fori  with  regard  to  either  its  quality  or  its  consequences.  On  the 
other  hand,  it  equally  little  means  that  the  law  of  the  place  of 
the  act  is  operative  outside  of  its  own  territory.  The  theory  of 
the  foreign  suit  is  that,  although  the  act  complained  of  was  sub- 
ject to  no  law  having  force  in  the  forum,  it  gave  rise  to  an  obli- 
gation, an  obligatio  which,  like  other  obligations,  follows  the  per- 
son and  may  be  enforced  wherever  tlie  person  may  be  found/' 

In  this  case  the  court  go  on  to  declare,  however,  that  if  the  only 
source  of  obligation  be  the  law  of  the  place  of  the  act,  that  law  de- 
termines not  merely  the  existence  of  the  obligation,  but  its 
extent.  "J&  seems  to  us  unjust,"'  the  court  say,  "to  allow  the 
plaintiff  to  come  here   absolutely  depending  on  the  foreign  law 

10  See  also  Stewart  v.  B.  &  0.  B.  R.  Co.,  168  U.  S.  -445;   18  Sup.  Ct.  Rep. 
105 ;  42  L.  ed.  537. 
n  194  U.  S.  120;  24  Sup.  Ct.  Rep.  581;  48  L.  ed.  900. 


Interstate  Relations  :  Full  Force  and  Credit  Clause.     201 

for  the  foundation  of  his  case,  and  yet  to  deny  the  defendant  the 
benelit  of  whatever  limitations  on  his  liability  that  law  would 
impose." 

This  doctrine  is  again  affirmed  and  applied  in  Atchison,  etc., 
E.  Co.  v.  Sowers.12 

* 
§  96.  Judgments  in  Rem  and  in  Personam. 

The  validity  of  judgments  or  decrees  in  States  other  than  those 
in  which  they  are  obtained  depends  upon  the  court  which  ren- 
dered them  having  obtained  jurisdiction.  -In  order  to  obtain 
jurisdiction  in  actions  in  rem,  the  res  must  be  located  in  the  State. 
In  all  actions  service  of  notice  of  the  commencement  of  the  suit 
mnst  be  had  upon  the  defendants.  In  actions  in  rem  this  service 
need  not  be  actual,  but  may  be  constructive,  that  is,  by  publication 
In  actions  in  personam,  however,  actual  service  is  required.  Mere 
constructive  service  will  not  warrant  a  personal  judgment  or  de- 
cree which  may  be  sued  upon  in  another  jurisdiction.  This 
doctrine  is  carefully  laid  down  in  Pennoyer  v.  Xeff.13  In  its 
opinion  in  this  case  the  court  say:  "  It  is  in  virtue  of  the  Stated 
jurisdiction  over  the  property  of  the  non-residents  situated  within 
its  limits  that  its  tribunals  can  inquire  into  that  non-resident's 
obligations  to  its  own  citizens,  and  the  inquiry  can  then  be  car- 
ried only  to  the  extent  necessary  to  control  the  disposition-  of  the 
property.  If  the  non-residents  have  no  property  in  the  State, 
there  is  nothing  upon  which  the  tribunals  can  adudicate. 
.  .  "Where  a  party  is  within  a  territory,  he  may  justly  be 
subjected  to  its  process,  and  bound  personally  by  the  judgment 
pronounced  on  such  process  against  him.  Where  he  is  not  within 
such  territory,  and  is  not  personally  subject  to  its  laws,  if  am 
account  of  his  supposed  or  actual  property  being  within  the  ter- 
ritory, process  by  the  local  laws  may,  by  attachment,  go  to  com- 
pel his  appearance,  and  for  his  default  to  appear,  judgment  may 
be  pronounced  against  him;  such  a  judgment  must,  upon  gen- 
eral principles,  be  deemed  to  bind  him  only  to  the  extent  of  such 

"213  T.  S.  866;  2!)  Sup.  Ct.  Rep.  397;  53  L.  ed.  695. 
13  95  U.  S.  714;  24  L.  ed.  565. 


202  United  States  Constitutional  Law. 

property,  and  cannot  have  the  effect  of  a  conclusive  judgment  in 
personam,  for  the  plain  reason  that,  except  so  far  as  the  property 
is  concerned,  it  is  a  judgment  coram  non  judice." 

The  inability  of  the  courts  of  one  State  to  effect  by  their  judg- 
ments or  decisions  property  having  its  legal  situs  in  another  State 
tis  illustrated  in  the  recent  case  of  Fall  v.  Eastin,14  in  which  it  was 
held  that  a  deed  to  a  piece  of  land  located  in  Nebraska  made  by 
a  commissioner  in  the  State  of  Washington  under  the  order  of 
a  court  of  that  State  need  not,  under  the  full  faith  and  credit 
clause,  be  recognized  in  the  former  State.  The  court  point  out 
that  had  the  plaintiff  in  error  obeyed  the  order  of  the  Washing- 
ton court  and  made,  as  directed,  a  deed  of  conveyance,  that  con- 
veyance would  have  received  recognition  in  the  Nebraska  courts. 
But  he  having  refused  to  do  this,  and  the  deed  having  been  made 
by  a  commissioner,  the  conveyance  was  to  be  considered  as  a  part 
of  the  proceedings  in  the  court  which  ordered  it,  which  court  was 
without  power  to  affect  the  title  of  real  property  not  within  the 
State.  As  to  this  the  court  quote  from  Watkins  v..  Holman,15 
where  it  is  said:  "A  court  of  chancery,  acting  in  personam  may 
well  declare  the  conveyance  of  land  in  any  other  State,  and  may 
enforce  its  decree  by  process  against  the  defendant.  But  neither 
the  decree  itself  nor  any  conveyance  under  it,  except  by  the  person 
in  whom  title  is  vested,  can  operate  beyond  the  jurisdiction  of  the 
court." 

§  97.  Nul  Tiel  Record. 

From  the  foregoing  it  clearly  appears  that  in  all  cases  in  which 
suit  is  brought  in  one  State  upon  a  judgment  rendered  in  another 
State,  the  court  in  which  the  suit  is  brought  may  examine  whether 
the  tribunal  in  which  the  judgment  sued  upon  was  rendered  had 
jurisdiction  to  render  a  personal  judgment.  In  Fauntleroy  v. 
Lum16  the  interesting  question  was  raised  whether  a  court  in 
which  suit  is  brought  upon  a  judgment  obtained  in  another  State 
may  examine  into  the  original  facts  upon  which  that  judgment 

i*  30  Sup.  Ct.  Eep.  3. 

is  16  Pet.  25 ;  10  L.  ed    873. 

i«210  U.  S.  230;  28  Sup.  Ct.  Rep.  641;  52  L.  ed.  1039. 


Interstate  Relations  :  Full  Force  and  Credit  Clause.     203 

was  based,  and  refuse  to  give  full  faith  and  credit  to  the  judgment 
if  it  be  found  that  these  facts  were  such  as  would  not  have 
created  a  legal  claim  under  the  law  of  the  State  in  which  enforce- 
ment of  the  judgment  thereupon  is  being  sought.  In  this  case 
the  plaintiff,  a  citizen  of  Mississippi,  obtained  in  Missouri  a  judg- 
ment against  another  citizen  of  Mississippi  upon  whom  personal 
service  had  been  obtained  while  he  was  temporarily  in  Missouri, 
in  a  suit  brought  upon  a  contract  in  cotton  futures  entered  into 
in  Mississippi  in  which  State  such  futures  were  prohibited  by 
law.  The  case  finally  reaching  the  federal  Supreme  Court,  that 
tribunal  held  that,  the  Missouri  court  having  had  jurisdiction 
to  render  a  personal  judgment  against  the  defendant,  the  full 
faith  and  credit  clause  obligated  the  courts  of  Mississippi  to  give 
to  the  judgment  full  force  and  credit.  The  court  admitted  that 
in  the  opinion  in  Wisconsin  v.  Pelican  Insurance  Co.17  language 
was  used  which  might  imply  a  right  in  a  court  to  examine  as 
to  the  original  basis  of  the  foreign  judgment  sued  upon,  but  these 
words  were  declared  obiter,  and  the  doctrine  of  that  case  limited 
to  the  precise  point  decided. 

In  a  dissenting  opinion  in  Fauntleroy  v.  Lum,  concurred  in  by 
four  justices,  it  was  argued  that  in  Wisconsin  v.  Pelican  Insur- 
ance Co.  the  court  had  held  that  the  full  faith  and  credit  clause 
did  not  preclude  an  examination  into  the  basis  of  the  foreign 
judgment,  and  rightfully  so,  inasmuch  as  at  the  time  of  the  adop- 
tion of  the  Constitution  the  rules  of  comity  universally  prevail- 
ing did  not  require  a  sovereignty  to  give  effect  to  a  judgment  of 
another  sovereignty  when  to  do  so  would  be  to  enforce  a  contract 
illegal  and  prohibited  by  the  local  law,  when  both  the  contract 
and  all  the  acts  done  in  pursuance  thereof  had  taken  place  in  the 
State  where  enforcement  of  the  judgment  was  sought. 

In  this  dissent  reliance  is  also  placed  on  Anglo-American 
Provision  Co.  v.  Davis  Provision  Co.18  in  which  it  was  held  that  a 
judgment  rendered  in  Illinois  against  one  corporation  in  favor  of 
another,  both  corporations  being  foreign  to  Xew  York,  was  not 

O  127  U.  S.  265;  8  Sup.  Ct.  Rep.  1370;  32  L.  ed.  239. 
is  191  U.  S.  373;  24  Sup.  Ct,  Rep.  92;  48  L.  ed.  225. 


204  Uxitkd  States  Constitutional  Law. 

enforceable  in  the  courts  of  Xew  York,  because  the  statutes  of  that 
State  did  not  give  the  court  jurisdiction  over  such  an  action  as 
that  in  which  the  enforcement  was  sought  The  Supreme  Court 
saj:  "  The 'Constitution  does  not  require  the  State  of  Xew  York 
to  give  jurisdiction  to  the  [state]  Supreme  Court  agaiust  its  will. 
If  the  plaintiff  can  find  a  court  into  which  it  -has  a  right  to  come, 
then  the  effect  of  the  judgment  is  fixed  by  the  Constitution  and 
the  act  in  pursuance  of  it  which  Congress  has  passed.  But  the 
Constitution  does  not  require  the  -State  to  provide  such  a  court. 
If  the  State  does  provide  a  court  to  which  its  citizens  may  resort 
in  a  certain  class  of  cases,  it  may  be  that  citizens  of  other  States 
of  the  Union  also  would  have  a  right  to  resort  to  it  in  cases  of  the 
same  class.  But  that  right  even  when  the  suit  was  upon  a  judg- 
ment of  another  State  would  not  rest  on  the  first  section  of  article 
IV,  .  .  .  but  would  depend  on  the  second  section  entitling  the 
citizens  of  each  State  to  all  privileges  and  immunities  of  citizens 
in  the  several  States." 

It  has  been  held  that  the  u  full  .faith  and  credit  clause  does 
not  operate  to  give  effect  in  another  -State  to  a  state  statute  ex- 
empting from  taxation  the  evidence  of  the  state  debt  so  as  to  defeat 
the  collection  of  a  tax  levied  by  that  other  State  upon  portions 
of  the  debt  held  by  persons  there  residing.  This  was  decided  by 
Bonaparte  v.  Tax  Court,19  the  court  saying:  "It  is  insisted 
.  .  .  that  the  immunity  asked  for  arises  from  Article  IV,  Sec- 
tion 1,  of  the  Constitution.  .  .  .  We  are  unable  to  give -such 
an  effect  to  this  provision.  Xo  State  can  legislate  except  with 
reference  to  its  own  jurisdiction.  One  State  cannot  exempt  prop- 
erty from  taxation  in  another.  Each  State  is  independent  of  all 
the  others  in  this  particular.  .  .  .  The  debt  was  registered, 
but  that  did  not  prevent  it  from  following  the  person  of  its  owner. 
The  debt  still  remained  a  chose  in  action,  with  all  the  incidents 
which  pertain  to  that  species  of  property.  It  was  '  movable  '  like 
other  debts,  and  had  none  of  the  attributes  of  '  immovability.' 
The  owner  may  be  compelled  to  go  to  the  debtor  State  to  get  what 
is  owing  to  him,  but  that  does  not  affect  his  citizenship  or  his 

19  104  U.  S.  592 ;  26  L.  ed.  845. 


Interstate  Relations:  Fnx  Force  and  Credit  Clause.     2 

domicile.  The  debtor  State  is  in  no  respect  his  sovereign,  neither 
has  it  any  of  the  attributes  of  sovereignty  as  to  the  debt  it  owes, 
except  such  as  belong  to  it  as  a  debtor.  All  the  obligations  which 
rest  on  the  holder  of  the  debt  as  a  resident  of  the  State  in  which 
he  dwells,  still  remain,  and  as  a  member  of  society  he  must  con- 
tribute his  just  bIuus  toward  supporting  the  government  whose 
protection  he  claims  and  to  whose  control  he  has  submitted 
himself." 

§  98.  Marriage  and  Divorce. 

The  force  and  meaning  of  the  "  full  faith  and  credit "  clause 
of  the  Constitution  has  been  especially  worked  out  in  connection 
with  the  subject  of  marriage  and  divorce  and  it  will,  therefore,  be 
proper  to  state  brielly  the  positions  that  the  Supreme  Court  has 
taken  upon  this  point. 

Generally  speaking,  it  has  been  held  in  the  United  States  that 
jurisdiction  to  grant  a  divorce  depends  upon  the  domicile  of  the 
complainant.  With  hardly  an  exception,  all  of  the  States  of  the 
Union  recognize  the  possibility  of  the  wife  obtaining  a  domicile 
separate  from  that  of  her  husband.  Until  recently,  however,  a 
few  States  (among  them  Xew  York)  held  that  where  the  husband 
aiid  wife  were  domiciled  in  different  States,  decrees  of  divorce 
granted  in  either  State  would  not  have  to  be  given  full  faith  and 
credit  In  the  other  States.  The  unconstitutionality  of  this  doc- 
trine was,  however,  declared  by  the  United  States  Supreme  Court 
in  Atherton  v.  Athorton.20 

»181  U.  S.   ].V.;  2\  Sup.  Ct.  Rep.  544;  45  L.  ed.  794. 

In  all  European  countries,  and  in  Spanish  America,  the  possibility  of  the 
wife  (who  has  not  obtained  a  judicial  separation)  having  a  nationality, 
domicile,  or  residence  apart  from  her  husband  is  not  reeojjnized.  A  &"*  °f  ^e 
Protestant  State-  of  Germany,  and  possibly  other  States,  permit  a  wife  living 
apart  from  her  hu-band  to  secure  naturalization  and  then  to  get  a  divorce, 
but  most  States  refuse  to  recognize  snch  a  divorce  as  valid.  De  BanffYeniont 
v.  D->  Banff remont.  Dalloz.  1878.  IT.  I.  1*7K.  1.  2<U  ;  2  Brale's  Cases  on  Con- 
flict of  Laws,  99  (France)  ;  In  re  W's  Marriage,  25  Clunet,  385;  1  rleale's 
Ca-.  'rial.     In  Knpland  the  courts  now  recogni/"  the  p'  nihility  of  a 

wife  deserted  bv  her  hnshand  obtaining  a  divorce  in  the  State  where  they  last 
lived  together,  irrespective  of  his  present   domicile.     Armytage  v.   Armytage, 


206  United  States  Constitutional  Law. 

One  State  of  the  Union  is,  of  course,  not  obliged  to  recognize 
the  validity  of  a  divorce  granted  by  a  court  of  another  State  un- 
less that  State  had  jurisdiction  to  grant  it, —  a  jurisdiction  which, 
as  just  said,  is  held  to  depend  upon  the  domicile  of  one  or  both 
of  the  parties.  No  valid  decree  of  divorce  can,  therefore,  be 
granted,  on  constructive  service,  by  the  courts  of  a  State  in  which 
neither  party  is  domiciled.21 

Where  the  plaintiff  has  not  a  bona  fide  domicile  in  the  State, 
a  court  cannot  render  a  decree  binding  in  other  States  even  if  the 
non-resident  defendant  voluntarily  enters  a  personal  appearance.22 
Of  course,  however,  there  is  nothing  to  prevent  courts  of  one 
State  from  recognizing,  if  they  see  fit,  a  decree  thus  granted  in 
another  State.  The  provision  of  the  federal  Constitution  is 
brought  into  force  only  when  state  courts  refuse  to  grant  full 
faith  and  credit.23 

Finally  it  should  be  said  that  in  all  cases  where  the  defendant 
has  not  been  summoned  within  the  State,  or  has  not  voluntarily 
appeared,  the  decree  that  is  rendered  has  no  extraterritorial  force 
except  as  dissolving  the  matrimonial  status.  It  cannot  control  in 
an  extraterritorial  manner  questions  of  property  rights,  custody 
of  children  and  the  payment  of  alimony. 

1898,  Pr.  179.  In  most  European  States  a  divorce  will  be  recognized  only  if 
obtained  in  the  country  to  which  the  parties  owe  allegiance.  In  England  the 
divorce  will  be  recognized  only  when  obtained  at  the  domicile  of  the  husband. 
The  English  court  has  recently  recognized  an  American  divorce  obtained  at  the 
wife's  domicile,  where  the  husband  was  domiciled  in  another  ^American  State 
which  recognized  the  divorce.  Armtage  v.  Attorney-General,  22  T.  L.  R. 
306.  The  court,  however,  took  occasion  to  reiterate  the  general  principle 
that  "  it  is  the  husband's  domicile  which  decides  the  tribunal  to  try  the  cause. 
In  Scotland  and  the  other  countries  governed  by  the  Roman-Dutch  law  there 
is  no  requirement  whatever  of  nationality  or  domicile,  but  residence  of  the 
parties  for  a  certain  time  within  the  State  is  sufficient.  Weatherley  v. 
Weatherley,  Transvaal,  Prov.  Rep.  66;  1  Beale's  Cas.  420."  This  note  is  sub- 
stantially quoted  from  the  article  "  Constitutional  Protection  for  Decrees  of 
Divorce,"  by  Joseph  H.  Beale,  Jr.,  in  the  Haward  Law  Review,  June,  1906 
(XIX,  589). 

2i  Bell  v.  Bell,  181  U.  S.  175;  21  Sup.  Ct.  Rep.  551;  45  L.  ed.  804. 

22  Andrews  v.  Andrews,  188  U.  S.  14;  23  Sup.  Ct.  Rep.  237;  47  L.  ed.  366. 

23Lynde  v.  Lynde,  181  U.  S.  183;  21  Sup.  Ct.  Rep.  555;  45  L.  ed.  810. 

) 


INTEKSTATE  RELATIONS:  FULL  FOKCE  AND  CltEDIT  CLAUSE.      207 

Until  the  decision  in  1906  of  the  case  of  Haddock  v.  Haddock,24 
it  had  been  supposed  that  a  decree  of  divorce  granted  the  husband 
or  wife  by  a  court  of  the  State  in  which  he  or  she  was  domiciled, 
if  the  notice  of  the  beginning  of  the  suit  required  by  the  local 
law  had  been  served  actually  or  constructively  upon  the  other 
party,  was  in  all  cases  valid  in  other  States.  This,  it  had  been 
thought,  had  been  determined  in  Atherton  v.  Atherton.25 

In  Atherton  v.  Atherton  a  divorce  had  been  granted,  on  the 
ground  of  desertion,  to  a  husband  in  Kentucky  whose  wife  had 
left  him  and  taken  up  residence  in  New  York.  She  had  not 
appeared  in  the  suit,  but  notice  had  been  served  upon  her  by 
mail.  The  highest  court  of  ~New  York  refused  to  give  effect  to 
this  decree  upon  the  ground  that  the  wife  had  been  forced  to  leave 
her  husband  because  of  cruel  treatment,  had  thereby  been  entitled 
to  obtain  a  domicile  apart  from  him,  and  had  not  appeared  or 
Been  personally  served  with  process.  The- Supreme  Court  of  the 
United  States,  however,  reversed  this  holding  of  the  "New  York 
court,  saying  that,  inasmuch  as  the  Kentucky  court  had  jurisdic- 
tion of  the  complainant,  and  constructive  service  had  been  had  upon 
the  defendant,  its  decree  had  to  be  recognized  as  conclusively  estab- 
lishing not  only  the  fact  of  the  divorce,  but  that  the  wife  had 
abandoned  her  husband.  The  opinion  declared :  "  We  are  of 
opinion  that  the  undisputed  facts  show  that  such  efforts  were 
required  by  the  statutes  of  Kentucky,  and  were  actually  made  to 
give  the  wife  actual  notice  of  the  suit  in  Kentucky  as  to  make  the 
decree  of  the  court  there,  granting  a  divorce  upon  the  grounds 
that  she  had  abandoned  her  husband,  as  binding  on  her  as  if  she 
had  been  served  with  notice  in  Kentucky,  or  had  voluntarily  ap- 
peared in  the  suit.  Binding  her  to  the  full  extent,  it  established 
beyond  contradiction,  that  she  had  abandoned  her  husband,  and 
precludes  her  from  asserting  that  she  left  him  on  account  of  his 
cruel  treatment.  To  hold  otherwise  would  make  it  difficult,  if 
not  impossible,  for  the  husband  to  obtain  a  divorce  for  the  cause 
alleged,  if  it  actually  existed.     The  wife  not  being  within  the 

2*201  U.  S.  562;  26  Sup.  Ct.  Rep.  525;  50  L.  ed.  867. 
25  181  U.  S.  155;  21  Sup.  Ct.  Rep.  544;  45  L.  ed.  794. 


20S  United  States  Constitutional  Law. 

State  of  Kentucky,  if  constructive  notice,  -with  all  the  precautions 
prescribed  by  the  statutes  of  that  State,  were  insufficient  to  bind 
her  by  a  decree  dissolving  the  bonds  of  matrimony,  the  husband 
could  only  get  a  divorce  by  suing  in  the  State  in  which  she  was 
found;  and  by  the  very  fact  of  suing  her  there,  he  would  admit 
that  she  had  acquired  a  separate  domicile  ( which  he  denied ) ,  and 
would  disprove  his  own  ground  of  action,  that  she  had  abandoned 
him  in  Kentucky." 

The  court  in  its  opinion  was,  however,  careful  to  confine  the 
doctrine  laid  down  to  the  particular  ease  before  it.  u  This  case,'' 
it  declared,  "  does  not  involve  the  validity  of  a  divorce  granted 
on  constructive  service,  by  the  court  of  a  State  in  which  only  one 
of  the  parties  ever  had  a  domicile,  nor  the  question  to  what  extent 
the  good  faith  of  the  domicile  may  be  afterward  inquired  into. 
In  this  case,  the  divorce  in  Kentucky  was  by  the  court  of  the 
State  which  had  always  been  the  undoubted  domicile  of  the  hus-~ 
band,  and  which  was  the  only  matrimonial  domicile  of  the  hug- 
band  and  wife.  The  single  question  to  be  decided  is  the  validity 
of  that  divorce,  granted  after  such  notice  had  been  given  as  was 
required  by  the  statutes  of  Kentucky."  The  court  did,  however, 
affirm  the  general  doctrine  that  "  the  purpose  and  effect  of  a 
decree  of  divorce  from  the  bond  of  matrimony  by  a  court  of  com- 
petent jurisdiction  are  to  change  the  existing  status  or  domestic 
relations  of  husband  and  wife,  and  to  free  them  both  from  the 
bond.  The  marriage  tie,  when  thus  severed  as  to  one  party,  ceases 
to  bind  the  other.  A  husband  without  a  wife,  or  a  wife  without 
a  husband,  is  unknown  to  the  law." 

The  facts  of  the  case  of  Haddock  v.  Haddock'-6  very  much 
resembled  those  of  Atherton  v.  Atherton.  The  only  important  dif- 
ference, if  indeed  it  was  an  important  difference,  was  that  here 
the  decree  which  was  sought  to  be  used  as  conclusive  in  another 
State,  had  been  granted  the  husband  by  the  courts  of  a  State  which 
was  not  the  matrimonial  domicile,  but  was  the  then  domicile  of 
the  husband.  The  wife,  residing  in  the  State  of  the  original 
matrimonial  domicile,  had  received  only  constructive  notice.     The 

26  201  U.  S.  562;  26  Sup.  Ct.  Rep.  525:  50  L.  ed.  867. 


Iktebstatb  Relations:  Full  Force  axd  Ceedit  Clause.    209 

courts  of  the  State  of  the  wife's  domicile  refused  to  recognize  the 
validity  of  this  decree,  on  the  ground  that  the  separation  had 
occurred  through  the  fault  of  the  husband,  and  their  action  was 
upheld  by  the  federal  Supreme  Court,  that  court  thus,  in  effect, 
deciding  that  the  husband,  though  divorced  in  the  State  (Con- 
necticut) where  he  had  obtained  his  decree,  was  not  divorced  in 
another  State  (Xew  York)  where  his  wife  —  or  former  wife  — 
resided.  In  effect,  then,  limiting  the  case  to  the  particular  facts 
involved,  the  doctrine  was  laid  down  that  where  the  complainant 
has  abandoned  the  wife,  and  obtained  a  domicile  in  a  State,  other 
than  that  of  the  original  matrimonial  domicile,  and  only  con- 
structive service  has  been  had  upon  the  defendant,  no  decree  of 
divorce  can  be  granted  to  which  full  force  and  credit  must  be 
given  in  the  courts  of  other  States. 

In  order  to  distinguish  this  case  from  previous  adjudications, 
and  especially  from  that  of  Atherton  v.  Atherton,  the  court,  in 
its  majority  opinion,  reviewed  the  whole  subject  and  laid  down 
the  following  doctrines  as  having  been  definitely  established: 
"  First.  The  requirement  of  the  Constitution  is  not  that  some,  but 
that  full,  faith  and  credit  shall  be  given  by  States  to  the  judicial 
decrees  of  other  States.  That  is  to  say,  where  a  decree  rendered 
in  one  State  is  embraced  by  the  full  faith  and  credit  clause,  that 
constitutional  provision  commands  that  the  other  States  shall  give 
to  the  decree  the  force  and  effect  to  which  it  was  entitled  in  the 
State  where  rendered.  (Harding  v.  Harding,  V.)S  U.  S.  317;  25 
Sup.  Ct.  Rep.  679;  49  L.  ed.  1006.)  Second.  Where  a  personal 
judgment  has  been  rendered  in  the  courts  of  a  State  against  a  non- 
resident merely  upon  constructive  service,  and.  therefore,  without 
acquiring  jurisdiction  over  the  person  of  the  defendant,  such 
judgment  may  not  be  enforced  in  another  State  in  virtue  of  the 
full  faith  and  credit  clause.  Indeed,  a  personal  judgment  so 
pandered  is,  by  operation  of  the  due  process  clause  of  the  Four- 
teenth Amendment,  void  as  against  the  non-resident,  even  in  the 
State  where  rendered;  and.  therefore,  such  n«'»n-resident.  in  virtue 
of  rights  granted  by  the  Constitution  of  the  Dinted  States,  may 
successfully  resist,  even  in  the  State  where  rendered,  the  enforce- 
14 


210  United  States  Constitutional  Law. 

ment  of  such  a  judgment.  (Pennoyer  v.  Xeff,  95  U.  S.  714;  24 
L.  ed.  565.)" 

Applying  these  principles  to  the  case  at  bar  the  court  held,  in 
the  first  place,  that  a  suit  for  divorce  is  essentially  an  action  in 
personam  and  not  in  rem;  and,  in  the  second  place,  that,  by 
wrongfully  deserting  his  wife,  the  domicile  of  the  wife,  contrary 
to  the  general  rule,  did  not  continue  that  of  the  husband  when 
he  removed  to  Connecticut,  but  continued  to  be  in  New  York,  the 
State  of  the  original  matrimonial  domicile.  Therefore,  it  was 
held  that  the  Connecticut  courts,  never  having  obtained  personal 
service  upon  the  wife,  and  the  action  not  being  in  rem,  no  decree 
could  be  rendered  against  her  that  would  affect  her  status  any- 
where except  in  the  State  where  the  judgment  was  rendered.  In 
effect,  it  was  held  that  in  order  to  render  a  decree  of  divorce 
that  would  have  to  be  recognized  by  the  courts  of  other  States, 
a  court  must  have  jurisdiction  of  both  of  the  parties,  that  is,  of 
the  complainant  by  bona  fide  residence  creating  a  domicile,  and  of 
the  defendant  either  by  domicile  in  the  State,  by  personal  service, 
or  actual  appearance,  or  by  constructive  service.  But  that  this 
constructive  service  cannot  be  relied  upon  in  cases  where  the 
defendant,  having  had  good  reason  for  separating  from  the  com- 
plainant, has  obtained  or  retained  a  domicile  in  another  State. 

In  the  Atherton  case,  it  was  argued  that  the  constructive  ser- 
vice upon  the  wife  had  been  sufficient  to  give  the  court  jurisdic- 
tion because  the  wife  had  not  been  able  to  obtain  a  domicile  apart 
from  her  husband  by  wrongfully  separating  herself  from  her 
husband.  In  the  case  at  bar,  however,  the  complainant  had  de- 
serted the  defendant  and  matrimonial  domicile,  and,  therefore, 
she  had  been  entitled  to  retain  her  domicile  in  New  York,  after 
the  removal  of  her  husband  to  Connecticut. 

Four  justices  dissented.  In  the  opinion  concurred  in  by  them 
it  was  argued  that  the  case  was  governed  by  the  doctrines  laid 
down  in  Atherton  v.  Atherton.  In  that  case  it  was  held  that  juris- 
diction over  a  domiciled  complainant  and  constructive  service  over 
the  defendant  were  sufficient  to  support  a  decree  which  was  en- 
titled to  full  force  and  credit  in  other  States.     In  the  case  at  bar 


•Interstate  Relations:  Full  Fokce  and  Credit  Clause.    211 

the  domicile  of  the  complainant  was  a  bona  fide  one,  and,  it  was 
argued,  the  facts  that  it  was  or  had  been  a  matrimonial  domicile 
or  that  the  complainant  had  wrongfully  left  his  wife  were  irrele- 
vant. The  fact  that  the  Connecticut  court  had  granted  the  divorce 
was,  or  should  have  been,  it  was  argued,  conclusive  upon  the  New 
York  courts  that  the  defendant  had  deserted  the  complainant  and 
not  vice  versa.  It  was  denied  that  a  proceeding  for  divorce  is  a 
personal  one  (though  a  suit  in  personam  is  often  incorporated 
with  it).  In  short,  then,  the  bona  fide  domicile  of  the  complain- 
ant being  granted,  and  constructive  service  such  as  the  lex  fori 
demanded  being  had,  and  decree  for  divorce  actually  rendered, 
the  merits  of  the  case,  that  is,  as  to  which  of  the  parties  was  re- 
sponsible for  the  separation,  the  dissenting  justices  argued,  were 
no  longer  open  for  examination,  and  hence  the  question  as  to 
where  was  or  had  been  the  matrimonial  domicile  became  irrele- 
vant. 

The  decision  of  the  Supreme  Court  in  Haddock  v.  Haddock 
undoubtedly  came  as  a  great  surprise  to  lawyers  generally,  and 
its  correctness  has  been  questioned  by  many.27 

It  is  possible  that  the  assertion  made  in  the  dissenting  opinion 
that  the  decision  of  the  Connecticut  court  that  the  wife  had  de- 
serted the  husband,  and  not  he  her,  should  have  been  held  con- 
clusive of  that  fact  in  the  New  York  courts,  may  be  met  by  the 
argument  of  Justice  Peckham's  dissenting  opinion  in  Atherton 
v.  Atherton.  This  was  that  the  court  in  which  the  full  force  and 
credit  of  a  decree  of  divorce  of  a  court  of  another  State  is  de- 
manded, may  exercise  its  own  judgment  as  to  the  rightfulness  or 
wrongfulness  of  the  separation  of  the  defendant  from  the  com- 
plainant in  order  to  determine  whether  or  not  such  defendant  had 
been  able  to  obtain  a  domicile  apart  from  the  complainant,  and, 
therefore,  whether  or  not  such  defendant  was  properly  beyond  the 
jurisdiction  of  the  court  rendering  the  decree;  that,  in  other 
words,  the  decree  of  such  court  is  not  conclusive  upon  this  point 
as  it  goes  to  a  question  of  jurisdiction. 

27  For  acute,  and,  to  the  author's  mind,  destructive  criticisms  of  the  position 
■gaumed  by  the  majority  of  the  court  in  Haddock  v.  Haddock,  see  articles  by 
J.  H.  Beale,  Jr..  in  the  Harvard  Law  Review,  XIX,  586,  and  by  H.  A.  Bigtlow 
in  The  (irmiba.j.  XVIII,  348. 


212  United  States  Constitutional  Law. 

But  in  other  respects  it  does  appear  that  the  principles  laid 
down  bj  the  majority  of  the  court  in  the  Haddock  case  are  open 
to  objection.  Especially  open  to  objection  are  the  following  state- 
ments: that  a  suit  for  divorce  is  to  be  treated  as  a  proceeding  in 
personam;  that  the  fact  that  the  domicile  of  the  complainant  was 
not  the  original  matrimonial  domicile  is  important;  and,  finally, 
that  a  decree  of  divorce  which  though  not  necessarily  valid  in 
other  jurisdictions  is  valid  in  the  State  where  rendered,  and  that 
thus,  the  husband,  though  legally  divorced  in  one  State,  is  still 
married  in  another  State.  The  author  is,  therefore,  inclined  to 
believe  that  either  these  doctrines  will  ultimately  be  overruled, 
or,  if  not,  that  they  will  be  strictly  limited  in  their  application 
to  the  precise  facts  of  the  Haddock  case. 


CHAPTER  XIII. 

INTERSTATE  RELATIONS:  THE  COMITY  CLAUSE. 
§  99.  Privileges  and  Immunities. 

Article  IV,  Section  2  of  the  Constitution  declares  that  "  the 
citizens  of  each  State  shall  be  entitled  to  all  privileges  and  im- 
munities of  citizens  in  the  several  States."  This  provision  has 
for  its  general  aim  the  prevention  of  arbitrary  and  vexatious  dis- 
criminations by  the  several  States  in  favor  of  their  own  citizens 
and  against  the  citizens  of  other  States.  "  It  was  undoubtedly  the 
object  of  the  clause  in  question,"  say  the  Supreme  Court  in  Paul 
v.  Virginia,1  "  to  place  the  citizens  of  each  State  upon  the  same 
footing  with  citizens  of  other  States,  so  far  as  the  advantages  re- 
sulting from  citizenship  in  those  States  are  concerned.  It 
relieves  them  from  the  disabilities  of  alienage  in  other  States; 
it  inhibits  discriminating  legislation  against  them  by  other  States; 
it  gives  them  the  right  of  free  ingress  into  other  States,  and  egress 
from  them ;  it  insures  to  them  in  other  States  the  same  freedom 
possessed  by  the  citizens  of  those  States  in  the  acquisition  and 
enjoyment  of  property  and  in  the  pursuit  of  happiness;  and  it 
secures  to  them  in  other  States  the  equal  protection  of  their  laws. 
It  has  been  justly  said  that  no  provision  in  the  Constitution  has 
tended  so  strongly  to  constitute  the  citizens  of  the  United  States 
one  people  as  this.2  Indeed,  without  some  provision  of  the  kind, 
removing  from  the  citizens  of  each  State  the  disabilities  of  alien- 
age in  the  other,  and  giving  them  equality  of  privilege  with  citi- 
zens of  those  States,  the  Republic  would  have  constituted  little 
more  than  a  league  of  States;  it  would  not  have  constituted  the 
Union  which  now  exists." 

In  the  early  ease  in  the  federal  Circuit  Court  of  Corfield  v. 
Coryell,3  as  has  been  earlier  noted,  Justice  Washington  attempted 

18  Wall.  168;   19  L.  ed.  357. 

2  Citing  Lemmon  v.  The  People  of  X.  Y.,  20  X.  Y.  607. 

3  4  Wash.  C.  C.  371. 

[213] 


214  United  States  Constitutional  Law. 

a  still  more  particular,  though  not  an  exhaustive,  enumeration  of 
the  privileges  and  immunities  that  are  protected  from  state  dis- 
crimination.4 

Much  of  Justice  Washington's  language  was  obiter,  the  deter- 
mination of  the  enumerated  privileges  and  immunities  not  being 
necessarily  involved  in  the  case.  Many  of  these  rights  have,  how- 
ever, in  subsequent  cases,  been  specifically  passed  upon  and  sus- 
tained,5 and  it  is  believed  that  there  is  not  one  of  them  that  would 
not  be  declared  by  the  Supreme  Court,  in  a  proper  case,  to  be 
beyond  the  discriminating  power  of  the  States.  Thus  in  Ward 
v.  Maryland"  it  was  held  that  a  State  might  not  levy  a  license  tax 
upon  temporary  residents,  as  a  condition  precedent  to  allowing 
them  to  sell  certain  goods.  So  also  the  granting  of  licenses  to 
trade  cannot  be  limited  to  residents.7  Xor  can  a  State,  except  by 
proper  quarantine  and  other  police  regulations,  deny  to  citizens 
of  other  States  free  ingress  and  egress,  or  the  right  to  export  or 
import  property.8 

In  Ward  v.  Maryland  the  court  say:  "Attempt  will  not  be 
made  to  define  the  words  '  privileges  and  immunities,'  or  to 
specify  the  rights  which  they  are  intended  to  secure  and  protect, 
beyond  what  may  be  necessary  to  the  decision  of  the  case  before 
the  court.  Beyond  doubt,  those  words  are  words  of  very  compre- 
hensive meaning,  but  it  will  be  sufficient  to  say  that  the  clause 
plainly  and  unmistakably  secures  and  protects  the  right  of  a 
citizen  of  one  State  to  pass  into  any  other  State  of  the  Union,  for 
the  purpose  of  engaging  in  lawful  commerce,  trade,  or  business, 
without  molestation,  to  acquire  personal  property,  to  take  and 
hold  real  estate,  to  maintain  actions  in  the  courts  of  the  States, 
and  to  be  exempt  from  any  higher  taxes  or  excises  than  are  im- 

*  See  ante,  p.  179. 

6  See  especially  two  articles  by  W.  S.  Meyers  in  Michigan  Laic  Review,  I, 
pp.  286,  364,  entitled  "  The  Privileges  and  Immunities  of  Citizens  in  the 
Several  States." 

6  12  Wall.  418;  20  L.  ed.  449. 

T  In  re  Wilson,  15  Fed.  511. 

8  This  last  is  unconstitutional  as  well  by  the  commerce  clause  of  the  Con- 
stitution. 


Interstate  Relations:  the  Comity  Clause.         215 

posed  by  the  State  upon  its  own  citizens.  Comprehensive  as  the 
power  of  the  States  is  to  lay  and  collect  taxes  and  excises,  it  is 
nevertheless  clear,  in  the  judgment  of  the  court,  that  the  power 
cannot  be  exercised  to  any  extent  in  a  manner  forbidden  by  the 
Constitution;  and,  inasmuch  as  the  Constitution  provides  that  the 
citizens  of  each  State  shall  be  entitled  to  all  privileges  and  im- 
munities of  citizens  in  the  several  States,  it  follows  that  the  de- 
fendant might  lawfully  sell  or  offer  or  expose  for  sale  within  the 
district  prescribed  in  the  indictment  any  goods  which  the  perma- 
nent residents  of  the  State  might  sell  or  offer  Or  expose  for  sale  in 
that  district,  without  being  subjected  to  any  higher  tax  or  excise 
than  that  exacted  by  law  of  such  permanent  residents." 

§  100.  Political  Privileges. 

The  interstate  comity  clause  of  the  federal  Constitution  does 
not  compel  the  several  States  to  grant  to  resident  citizens  of  the 
other  States  immediately  upon  their  entrance  into  the  State  the 
political  privileges  extended  to  their  own  citizens.  This  the  Su- 
preme Court  has  held  from  the  very  beginning  and  has  recently 
reaffirmed  in  the  case  of  Blake  v.  McClung.9  "A  State/'  says  the 
court  in  that  case,  "  may  by  rule  uniform  in  its  operation  as  to 
citizens  of  the  several  States,  require  residence  within  its  limits 
for  a  given  time  before  a  citizen  of  another  State  who  becomes 
a  resident  thereof  shall  exercise  the  right  of  suffrage  or  become 
eligible  to  office.  It  has  never  been  supposed  that  regulations  of 
that  character  materially  interfered  with  the  enjoyment  by  citi- 
zens of  each  State  of  the  privileges  and  immunities  secured  by 
the  Constitution  to  citizens  of  the  several  States.  The  Constitu- 
tion forbids  only  such  legislation  affecting  citizens  of  the  respect- 
ive States  as  will  substantially  or  practically  put  a  citizen  of  one 
State  in  a  condition  of  alienage  when  he  is  within  or  removes  to 
another  State,  or  when  asserting  in  another  State  the  rights  that 
commonly  appertain  to  those  w^ho  are  part  of  the  political  com- 
munity known  as  the  People  of  the  United  States,  by  and  for 
whom  the  Government  of  the  Union  was  ordained  and  estab- 
lished." 

9  172  U.  S.  239;  19  Sup.  Ct.  Rep.  165;  43  L.  ed.  432. 


210  United  States  Constitutional  Law. 

Finally,  it  is  to  be  said,  the  several  States  may  impose  upon 
non-residents  suck  special  limitations  and  obligations  as  are,  in 
aim  and  effect,  not  discriminative  but  reasonably  necessary  for 
the  protection  of  their  own  citizens  from  fraud,  disease,  or  injury 
of  any  sort.  Thus,  as  an  example,  though  the  citizens  of  other 
States  may  not  be  forbidden  to  sue  in  the  courts  of  the  State,  they 
may  be  required  to  give  bonds  for  costs  not  exacted  of  residents.1" 

In  connection  with  this  police  powei  of  the  States  a  difficult 
question  is  raised  as  to  the  constitutionality  of  laws  conditioning 
the  exercise  of  certain  professions,,  such  as  Law,  medicine,  and 
dentistry  upon  residence  in  the  State  for  specified  periods  of 
time.  There  is  no  question  but  that  the  State  in  the  legitimate 
exercise  of  its  police  power  may  require  evidence  of  good  char- 
acter or  sufficient  technical  attainments  of  all  persons  desiring  to 
practice  these  professions.  A  certain  period  of  residence  in  the 
State  may,  therefore,  possibly  be  a  proper  requirement,  in  order 
that  the  applicant's  moral  character  and  general  attainments  may 
be  learned,  but  it  would  seem  that  if  this  required  period  be  made 
unnecessarily  long,  it  might  be  held  that  non-residents  are  unduly 
discriminated  against.  We  have,  however,  no  cases  in  which  this 
position  has  been  taken. 

§  101.  State  Proprietary  Privileges. 

In  McCready  v.  Virginia11  the  important  limitation  of  the 
clause  was  established  that  a  citizen  of  one  State  is  not,  of  con- 
stitutional right,  entitled  to  share  upon  equal  terms  with  the  citi- 

10  m  Chemung  Canal  Bank  v.  Lowery  (93  U.  S.  72 ;  23"  L.  ed.  806)  it  was 
held  that  a  Wisconsin  statute  was  not  in  violation  of  the  equal  privileges 
clause  because  it  provided  that  when  a  defendant  to  a  suit  was  out  of  the 
State,  the  statute  of  limitations  should  not  run  against  a  resident  plaintiff, 
but  that  it  should  if  he  were  a  non-resident.  The  court  held  that  this  was  a 
reasonable  provision.  "  If,"  said  the  court,  '"the  statute  does  not  run  as 
between  non-resident,  creditors  and  their  debtors,  it  might  often  happen  that  a 
right  of  action  would  be  extinguished,  perhaps  for  years,  in  the  State  where 
the  parties  reside;  and  yet,  if  the  defendant  should  be  found  in  Wisconsin,  it 
may  be  only  in  a  railroad  train,  a  suit  could  lie  sprung  upon  him  after  the 
claim  had  been  forgotten.  The  laws  of  Wisconsin,  would  thus  be  used  as  a 
trap  to  catch  the  unwary  defendant  after  the  laws  which  had  always  governed 
the  case  had  barred  any  recovery."     This  reasoning  seems  hardly  convincing. 

1194  U.  S.  391;  24  L."  ed.  248. 


Interstate  Relations:  the  Comity  Clause.         217 

zens  of  another  State  those  proprietary  interests  which  may  be 
said  to  belong  generally  to  that  State  as  such.  This  case  involved 
the  right  of  cultivating  oysters  on  beds  of  the  tide  waters  of  the 
State.  The  court  in  its  opinion  say :  *  We  think  we  may  safely 
hold  that  the  citizens  of  one  State  are  not  invested  by  this  clause 
of  the  Constitution  with  any  interest  in  the  common  property  of 
the  citizens  of  another  State."  **■ 

§  1C2.  Privileges  of  One  State  Not  Carried  into  Other  States. 

The  comity  clause  does  not  entitle  a  citizen  within  his  own 
State  to  privileges  and  immunities  which  may  be  granted  by 
other  States  to  their  citizens.  In  other  words,  it  does  not  require 
that  when  a  right  is  granted  by  any  one  of  the  States  of  the  Union 
to  its  citizens,  it  thereby  becomes  a  right  which  all  the  other 
States  must  grant  to  their  citizens.  This  claim,  extreme  as  it 
may  appear,  was  raised  in  McKane  v.  Durston13  but  negatived 

12  The  opinion  continues:  '"  If  Virginia  had  by  law  provided  for  the  sale  of 
its  once  vast  public  domain,  and  a  division  cf  the  proceeds  among  its  own 
people,  no  one,  we  venture  to  say,  would  contend  that  the  citizens  of  other 
States  bad  a  constitutional  right  to  tbe  enjoyment  of  this  privilege  of  Virginia 
citizenship.  Neither  if,  instead  of  selling,  the  State  had  appropriated  the 
same  property  to  be  used  as  a  common  by  its  people  for  the  purposes  of 
agriculture,  could  the  citizens  of  other  States  avail  themselves  of  such  a 
privilege.  And  the  reason  is  obvious;  the  right  thus  granted  is  not  a  privilege 
or  immunity  of  general  but  of  special  citizenship.  It  does  not  'belong  of  right 
to  the  citizens  of  all  free  government,'  but  only  to  the  citizens  of  Virginia,  on 
account  of  the  peculiar  circumstances  in  which  they  are  placed.  They,  and 
they  alone,  owned  the  property  to  be  sold  or  used,  and  they  alone  had  the 
power  to  dispose  of  it  as  they  saw  fit.  They  owned  it  not  by  virtue  of  citizen- 
ship merely,  but  of  citizenship  and  domicile  united;  that  is  to  say,  by  virtue 
of  a  citizenship  confined  to  that  particular  locality.  The  planting  of  oysters 
in  the  soil  covered  by  water  owned  in  common  by  the  People  of  the  State  is 
not  different  in  principle  from  that  of  planting  corn  upon  dry  land  held  in 
the  same  way.  Both  are  for  the  purpose  of  cultivation  and  profit:  and  if  the 
State,  in  the  regulation  of  its  public  domain,  can  grant  to  its  own  citiwns 
the  exclusive  itse  of  dry  lands,  we  see  no  reason  why  it  may  not  do  the  same 
thing  in  respect  to  such  as  are  covered  by  water.  And  as  all  concede  that  a 
State  may  grant  to  one  of  it-  citizens  the  exclusive  use  of  part  of  the  common 
property,  the  conclusion  would  seem  to  follow,  that  it  might  by  appropriate 
legislation  confine  the  use  of  the  whole  to  its  own  people  alone." 

13  153  U.  S.  6S4;  14  Sup.  Ct.  Rep.  913;  38  L.  ed.  867. 


218  United  States  Constitutional  Law. 

by  the  court  as  scarcely  worth  an  argument.  "  Whatever  may 
be  the  scope  of  Section  2  of  Article  IV,"  said  the  court,  .  .  . 
"  the  Constitution  of  the  United  States  does  not  make  the  privi- 
leges and  immunities  enjoyed  by  the  citizens  of  one  State  under 
the  Constitution  and  laws  of  that  State,  the  measure  of  the  privi- 
lege aud  immunities  to  be  enjoyed,  as  of  right,  by  the  citizens  of 
another  State  under  its  Constitution  and  laws.  ...  A  citation 
of  authorities  upon  the  point  is  unnecessary." 

It  also  scarcely  needs  argument  that  under  this  equal  privileges 
clause  a  citizen  of  one  State  residing,  or  having  legal  interests  in 
another  State,  may  not  lay  claim  to  privileges  and  immunities 
which  his  own  State  grants  him,  but  which  the  other  State  does 
not  grant  to  its  own  citizens. 

In  Paul  v.  Virginia14  the  court  say :  "  The  privileges  and  im- 
munities secured  to  citizens  of  each  State  in  the  several  States, 
by  the  provision  in  question,  are  those  privileges  and  immuni- 
ties which  are  common  to  the  citizens  in  the  latter  States  under 
their  Constitution  and  laws  by  virtue  of  their  being  citizens. 
Special  privileges  enjoyed  by  citizens  in  their  own  States  are 
not  secured  in  other  States  by  this  provision.  It  was  not  in- 
tended by  the  provision  to  give  to  the  laws  of  one  State  any  opera- 
tion in  other  States.  They  can  have  no  such  operation,  except  by 
the  permission,  express  or  implied,  of  those  States." 

§  103.  Corporations  not  Citizens  within  the  Meaning  of  the 
Comity  Clause. 
In  Paul  v.  Virginia  the  doctrine,  never  since  questioned,  was 
laid  down  that_a  corporation  is  not  a  citizen  within  the  meaning 
of  the  term  as  used  in  the  comity  clause.  Inasmuch  as  a  corpora- 
tion is  the  mere  creation  of  local  law,  the  court  declare  it  can 
have  no  legal  existence,  or  right  to  do  business,  beyond  the  limits 
of  the  sovereignty  by  which  it  is  created.  In  other  words,  the 
interstate  comity  clause  of  the  federal  Constitution  does  not  neces- 
sitate the  recognition  by  the  several  States  of  corporations  created 
by  any  of  the  other  States.     "  Having  no  absolute  right  of  recog- 

"8  Wall.  168;   19  L.  ed.  357. 


Interstate  Relations:  the  Comity   Clause.  219 

nition  in  other  States,"  the  court  say,  "  but  depending  for  such 
recognition  and  enforcement  of  its  contracts  upon  their  assent,  it- 
follows,  as  a  matter  of  course,  that  such  assent  may  be  granted 
upon  such  terms  and  conditions  as  those  States  may  think  proper 
to  impose.  They  may  exclude  the  foreign  corporation  entirely, 
they  may  restrict  its  business  to  particular  localities,  or  they  may 
exact  such  security  for  the  performance  of  its  contracts  with  their 
citizens  as  in  their  judgment  will  best  promote  the  public  in- 
terest.    The  whole  matter  rests  in  their  discretion." 

This  principle  of  state  omnipotence  when  dealing  with  the  cor- 
porations of  other  States  is,  however,  limited  in  three  very  im- 
portant respects.  In  so  far  as  such  corporations  are  engaged  in 
the  conduct  of  interstate  commerce  they  may  not  be  controlled, 
the  regulation  of  this  subject  being  exclusively  a  federal  concern; 
they  may  not  be  deprived  of  property  without  due  process  of  law 
or  denied  the  equal  protection  of  the  laws ;  and  the  obligation  of 
contracts  entered  into  with  them  may  not  be  impaired.15 

An  instructive  construction  by  the  Supreme  Court  of  the  comity 
clause  in  its  application  to  corporations  is  to  be  found  in  the  case 
of  Blake  v.  ATcClung,10  decided  in  1898.  In  that  case  was  held 
unconstitutional  an  act  of  the  State  of  Tennessee  which  provided 
that  resident  creditors  of  mining  and  manufacturing  corporations 
chartered  in  other  States,  and  doing  business  in  the  State  of 
Tennessee  should  have  "  a  priority  in  the  distribution  of  assets, 
or  subjection  to  the  same,  or  any  part  thereof,  to  the  payment  of 
debts  over  all  simple  contract  creditors,  being  residents  of  any 
other  country  or  countries."  After  calling  attention  to  the  fact 
that  the  court  had  never  attempted  to  give  an  exact  or  compre- 
hensive definition  of  the  clause  "  privileges  and  immunities  "  but 
had  deemed  it  "  safe,  and  more  in  accordance  with  the  duty  of 
a  judicial  tribunal,  to  leave  its  meaning  to  be  determined  in  each 
case,  upon  a  view  of  the  particular  rights  asserted  and  denied 
therein,"  the  court  nevertheless  goes  on  to  quote  with  approval 

is  These  limitations  will  be  more  fully  treated  in  later  chapters, 
is  172  U.  S.  239;   19  Sup.  Ct.  Rep.  165;  43  L.  ed.  432. 


220  United  States  Constitutional  Law. 

the  enumeration  of  Justice  Washington  in  Corfield  v.  Coryell, 
and  that  given  in  the  opinion  of  the  court  in  Paul  v.  Virgiuia  and 
Ward  v.  Maryland.  The  opinion  then  continues :  "  These  prin- 
ciples have  not  been  modified  by  any  subsequent  decision  of  this 
court.  The  foundation  upon  which  the  above  cases  rest  cannot, 
however,  stand,  if  it  be  adjudged  to  be  in  the  power  of  one  State, 
when  establishing  regulations  for  the  conduct  of  private  business 
of  a  particular  kind,  to  give  its  own  citizens  essential  privileges 
connected  with  that  business  which  it  denies  to  citizens  of  other 
States.  -  By  the  statute  in  question  the  British  company  was  to  be 
deemed  and  taken  to  be  a  corporation  of  Tennessee,  with  authority 
to  carry  on  its  business  in  that  State.  It  was  the  right  of  citizens 
of  Tennessee  to  deal  with  it,  as  it  was  their  right  to  deal  with 
corporations  created  by  Tennessee.  And  it  was  equally  the  right 
of  citizens  of  other  States  to  deal  with  that  corporation.  The 
State  did  not  assume  to  declare,  even  if  it  could  legally  have  de- 
clared, that  that  company,  being  admitted  to  do  business  in 
Tennessee,  should  transact  business  only  with  citizens  of  Tennes- 
see, or  should  not  transact  business  with  citizens  of  other  States. 
Xo  one  would  question  the  right  of  the  individual  plaintiffs  in 
error,  although  not  residents  of  Tennessee,  to  sell  their  goods  to 
that  corporation  upon  such  terms  in  respect  of  payment  as  might 
be  agreed  upon,  and  to  ship  them  to  the  corporation  at  its  place  of 
business  in  that  State.  But  the  enjoyment  of  these  rights  is  ma- 
terially obstructed  by  the  statute  in  question;  for  that  statute,  by 
its  necessary  operation,  excludes  citizens  of  other  States  from 
transacting  business  with  that  corporation  upon  terms  of  equality 
with  citizens  of  Tennessee.  We  hold  such  discrimination  against 
citizens  of  other  States  to  be  repugnant  to  the  second  section  of 
the  fourth  article  of  the  Constitution  of  the  United  States,  al- 
though generally  speaking,  the  State  has  the  power  to  prescribe 
the  conditions  upon  which  foreign  corporations  may  enter  into 
its  territory  for  purposes  of  business.  Such  a  power  cannot  be 
exerted  with  the  effect  of  defeating  or  impairing  rights  secured  to 
citizens  of  the  several  States  by  the  supreme  law  of  the  land. 


Interstate  Relations:  the  Comity  Clause.  221 

Indeed,  all  the  powers  possessed  by  a  State  must  be  exercised  con- 
sistently with  the  privileges  and  immunities  granted  or  protected 
by  the  Constitution  of  the  United  States."  17 

17  Chief  Justice  Fuller  and  Justice  "Brewer  dissented.  For  later  decisions 
vrith  reference  to  the  conditions  that  the  States  may  constitutionally  impose 
upon  foreign  corporations,  see  Blake  v.  McClung.  176  U.  S.  64;  20  Sup.  Ct. 
Rep.  307;  44  L.  ed.  371;  Sully  v.  American  National  Bank,  178  U.  S.  289; 
20  Sup.  Ct.  Rep.  935;  44  L.  ed.  1072;  Waters-Pierce  Oil  Co.  v.  Texas,  177 
U.  S.  2$:  20  Sup.  Ct.  Rep.  518;  44  L.  ed.  657;  Orient  Insurance  Co.  v.  Daggs, 
172  l".  S.  557;  19  Sup.  Ct.  Rep.  281;  43  L.  ed.  552;  W.  U.  Tel.  Co.  v.  Kansas, 
210  l\  S.  1;  30  Sup.  Ct  Rep.  190;  Pullman  Co.  v.  Kansas,  216  U.  S.  56;  30 
Sup.  Ct.  Rep.  232. 


CHAPTER  XIV. 

INTERSTATE  RELATIONS:  EXTRADITION. 

§  104.  Interstate  Extradition. 

The  Constitution  provides  that  "  a  person  charged  in  any  State 
with  treason,  felony,  or  other  crime,  who  shall  flee  from  justice, 
and  be  found  in  another  State,  shall  on  demand  of  the  executive 
authority  of  the  State  from  which  he  fled,  be  delivered  up  to  be 
removed  to  the  State  having  jurisdiction  of  the  crime."  1 

In  the  case  of  Kentucky  v.  Dennison,2  decided  by  the  Supreme 
Court  in  1860,  the  respective  powers  and  duties  of  the  State  and 
Federal  Governments  in  respect  to  the  extradition  of  criminals, 
came  up  for  adjudication.  Congress  had  passed  a  law  declaring 
that,  upon  request  from  the  State  from  which  the  fugitive  has 
escaped,  "  it  shall  be  the  duty  of  the  executive  authority  of  the 
State  "  to  cause  the  fugitive  to  be  seized  and  delivered  to  the  agent 
of  the  demanding  State.  Dennison,  the  governor  of  Ohio,  refused 
the  request  of  the  Commonwealth  of  Kentucky  to  surrender  a 
fugitive  from  her  borders.  Thereupon  a  mandamus  was  asked 
from  the  federal  court  to  compel  him  to  do  so.  This  writ  the 
Supreme  Court  in  a  unanimous  opinion  refused  to  issue,  the  argu- 
ment of  Taney,  who  prepared  the  opinion  of  the  court,  being  as 
follows:  The  duty  of  providing  by  law  the  regulations  necessary 
for  carrying  into  effect  this  right  to  extradition  manifestly  be- 
longs to  Congress.  "  For,"  said  Taney,  "  if  it  was  left  to  the 
States,  each  might  require  different  proof  to  authenticate  the 
judicial  proceedings  upon  which  the  demand  was  founded." 
Furthermore,  Taney  declared,  the  duty  that  is  laid  upon  the 
governors  of  States  by  the  Constitution  and  by  the  laws  that  Con- 
gress had  passed  regulating  the  subject  is  a  mere  ministerial  duty, 
and,  therefore,  one  the  performance  of  which  may  ordinarily  be 

i  Art.  IV,  See.  2,  CI.  2. 

2  24  How.  66;  16  L.  ed.  717. 

[222] 


INTERSTATE    RELATIONS:    EXTRADITION.  223 

compelled  by  the  courts.  Continuing  he  held  that  the  clause  in 
question  by  the  use  of  the  words  "  treason,  felony  or  other  crime," 
properly  included  every  act  forbidden  and  made  punishable  by  a 
State,  and  did  not  leave  to  the  governor  of  a  State  to  which  a 
fugitive  from  justice  might  flee,  the  right  to  refuse  to  surrender 
him  upon  the  ground  that  the  act  in  question  was  not  one  made 
punishable  by  the  law  of  the  State  of  which  he  was  the  chief 
executive.  "  The  argument  on  behalf  of  the  governor  of  Ohio," 
said  Taney,  "  which  insists  upon  excluding  from  this  clause  new 
offenses  created  by  a  statute  of  the  State  and  growing  out  of  its 
local  institutions,  and  which  are  not  admitted  to  be  offenses  in 
the  State  where  the  fugitive  is  found,  nor  so  regarded  by  the  gen- 
eral usage  of  civilized  nations,  would  render  the  clause  useless 
for  any  practical  purpose.  For  where  can  the  line  of  division 
be  drawn  with  anything  like  certainty  ?  Who  is  to  mark  it  ?  The 
governor  of  the  demanding  State  would  probably  draw  one  line, 
and  the  governor  of  the  other  State  another.  And  if  they  dif- 
fered, who  is  to  decide  between  them  ?  Under  such  a  vague  and 
indefinite  construction,  the  article  would  not  be  a  bond  of  peace 
and  union,  but  a  constant  source  of  controversy  and  irritating 
discussion.  It  would  have  been  far  better  to  omit  it  altogether, 
and  to  have  left  it  to  the  comity  of  the  States,  and  their  own 
sense  of  their  respective  interests,  than  to  have  inserted  it  as  con- 
ferring a  right  and  yet  defining  that  right  so  loosely  as  to  make 
it  a  never  failing  subject  of  dispute  and  ill  will."  Also,  he  de- 
clared, it  is  certain  that  the  words  "  it  shall  be  the  duty  "  when 
employed  in  the  ordinary  acts  of  legislation,  imply  an  assertion 
of  the  right  to  command  and  coerce  obedience.  u  But,"  said 
Taney,  "  looking  to  the  subject-matter  of  this  law,  and  the  rela- 
tions which  the  United  Sjates  and  the  several  States  bear  to  each 
other,  the  court  is  of  opinion  the  words  '  it  shall  be  the  duty ' 
were  not  used  as  mandatory  and  compulsory,  but  as  declaratory 
of  the  moral  duty  which  this  command  created,  when  Congress 
had  provided  the  mode  of  carrying  it  into  execution.  The  act 
does  not  provide  any  means  to  compel  the  execution  of  this  duty, 
nor  inflict  any  punishment  for  neglect  ov  refusal  on  the  part  of 


224:  United  States  Constitutional  Law. 

the  executive  of  the  State;  nor  is  there  airy  clause  or  provision  in 
the  Constitution  which  arms  the  government  of  the  United  States 
with  this  power.  Indeed,  such  a  power  would  place  every  State 
under  the  control  and  dominion  of  the  General  Government,  even 
in  the  administration  of  its  internal  concerns  and  reserved  rights. 
And  we  think  it  clear  that  the  Federal  Government,  under  the 
Constitution,  has  no  power  to  impose  on  a  state  officer,  as  such, 
any  duty  whatever,  and  compel  him  to  perform  it.  .  .  .  It  is 
true  that  Congress  may  authorize  a  particular  state  officer  to  per- 
form a  particular  duty;  but  if  he  declines  to  do  so,  it  does  not 
follow  that  he  may  be  coerced  or  punished  for  his  refusal/' 

There  have  since  been  a  number  of.  occasions  in  which  a  gov- 
ernor of  one  State  has  refused  the  extradition  of  a  person  found 
within  its  borders  and  who  had  admittedly  come  from  the  State 
which  asked  for  his  return.  A  notable  instance  was  the  refusal 
of  the  governor  of  Indiana  to  permit  the  extradition  of  ex- 
Governor  Taylor  of  Kentucky  who  was  indicted  in  the  latter  State 
as  having  been  a  party  to  the  murder  of  Governor  Goebel. 

§  105.  Extradition  by  the  States  of  the  Union  to  Foreign  States. 
In  1810  the  Supreme  Court  was  called  upon  to  pass  upon  the 
question  whether  it  lies  within  the  constitutional  power  of  the 
individual  States  of  the  Union  to  surrender  fugitives  from  justice 
to  a  foreign  government.3  This  point  the  court  found  it  so  diffi- 
cult to  decide  that,  after  holding  it  under  advisement  for  a  long 
time,  it  divided  equally  and  was,  therefore,  unable  to  render  an 
opinion  as  the  opinion  of  the  court,  though,  according  to  its  prac- 
tice in  such  cases,  it  affirmed  the  decision  of  the  court  below. 
Taney  in  his  individual  opinion  took  the  ground  that  the  surren- 
der of  fugitives  from  justice  is  a  matter  that  properly  falls  within 
the  general  field  of  international  relations,  and  that  the  control 
of  this  field  being  exclusively  vested  in  the  Federal  Government, 
the  States  are  absolutely  excluded  therefrom,  and,  therefore,  can- 
not, constitutionally,  exercise  the  right  of  extraditing  to  foreign 
countries  fugitives   from   them   to   their   own   territories.      "  The 

s  Holmes  v.  Jeimison,  14  Pet.  540;  10  L.  ed.  570. 


Interstate  Relations:  Extradition.  225 

power  in  question,"  he  declared,  u  from  its  nature,  cannot  be  a 
<  oncurrent  one,  to  be  exercised  both  by  the  States  and  the  General 
Government.  It  must  belong,  exclusively,  to  the  one  or  the 
other."  With  Taney  agreed  Story,  McLean,  and  Wayne.  Thomp- 
son, Barber  and  Catron,  however,  in  their  opinions,  took  the  view, 
that  the  action  of  the  governor  of  Vermont  was  not  subject  to 
examination  upon  the  part  of  the  federal  court,  because  there  then 
existed  no  treaty  between  the  United  States  and  the  country  to 
which  the  prisoner  was  to  be  extradited,  which  the  governor's 
action  could  be  said  to  violate.  Baldwin  in  a  separate  opinion 
sustained  the  power  of  the  State  upon  the  ground  that  it  was  a 
legitimate  exercise  of  its  police  power  to  obtain  riddance  of  an 
undesirable  inhabitant. 

It  would  seem  that  the  law  upon  this  point  remained  in  this 
unsettled  state  until  1886  when,  in  the  case  of  United  States  v. 
Rauseher4  the  Supreme  Court  declared,  without  dissent,  that 
*'  there  can  be  little  doubt  of  the  soundness  of  the  opinion  of  Chief 
Justice  Taney,  that  the  power  exercised  by  the  governor  of  Ver- 
mont is  a  part  of  the  foreign  intercourse  of  this  country  which 
lias  undoubtedly  l»een  conferred  upon  the  Federal  Government; 
and  that  it  is  clearly  included  in  the  treaty -making  power  and  the 
corresponding  power  of  appointing  and  receiving  ambassadors  and 
other  public  ministers.  There  is  no  necessity  for  the  States  to 
enter  upon  the  relations  with  foreign  nations  which  are  neces- 
sarily implied  in  the  extradition  of  fugitives  from  justice  found 
within  the  limits  of  the  State,  as  there  is  none  why  they  should 
in  their  own  name  make  demand  upon  foreign  nations  for  the 
surrender  of  such  fugitives.  At  this  time  of  day,  and  after  the 
repeated  examinations  which  have  been  made  by  this  court  into 
the  powers  of  the  Federal  Government  to  deal  with  all  such  inter- 
national questions  exclusively,  it  can  hardly  be  admitted  that,  even 
in  the  absence  of  treaties  or  acts  of  Congress  on  the  subject,  the 
extradition  of  a  fugitive  from  justice  can  become  the  subject  of 
negotiations  between  a  State  of  this  Union  and  a  foreign 
government." 

<  119  U.  S.  407;  7  Sup.  U.  Rep.  234;  30  L.  ed.  425. 
15 


226  United  States  Constitutional  Law. 

This  question  may  probably  be  now  considered  definitely 
settled,  but  it  is  interesting  to  observe  that  the  declaration  set- 
tling it  was,  after  all,  a  pure  dictum,  the  point  not  being  involved 
in  the  case  in  which  it  was  made. 

A  number  of  decisions  have  held  that  the  asylum  State  may 
satisfy  the  demands  of  its  own  laws  before  surrendering  a  fugi- 
tive to  the  State  from  which  he  has  fled.  u  When  a  demand  is 
properly  made  by  the  governor  of  one  State  upon  the  governor  of 
another,  the  duty  to  surrender  is  not  absolute  and  unqualified. 
It  depends  upon  the  circumstances  of  the  case.  If  the  laws  of 
the  latter  case  have  been  put  in  force  against  the  fugitive,  and 
he  is  imprisoned  there,  the  demands  of  those  laws  may  first  be 
satisfied."  5 

§  106.  Auxiliary  Legislation  by  the  States. 

The  power  of  Congress  by  legislation  to  render  effective  the 
extradition  clause  is  not  exclusive,  and  does  not,  therefore,  exclude 
the  power  of  the  State  to  enact  measures  auxiliary  thereto.  In- 
deed, such  additional  legislation  is,  in  general,  necessary,  as,  for 
example,  laws  for  inquiry  into  the  fact  whether  the  person 
demanded  was  actually,  and  not  constructively,  within  the  State 
claiming  him,  when  the  offense  charged  was  committed.6 

§  107.  Judicial  Examination  of  Extradition  Proceedings. 

"  Upon  the  executive  of  the  State  rests  the  responsibility  of 
determining,  in  some  legal  mode,  whether  [the  one  claimed]  is 
a  fugitive  of  the  demanding  State.  He  does  not  fail  in  duty  if 
he  makes  it  a  condition  precedent  to  the  surrender  of  the  accused 
that  it  be  shown  to  him,  by  competent  proof,  that  the  accused  is, 
in  fact,  a  fugitive  from  the  justice  of  the  demanding  State."  7 

6  Taylor  v.  Taintor,  16  Wall.  366;  21  L.  ed.  287. 

« Ex  parte  McKean,  3  Hughes  (U.  S.),  23;  Ex  parte  Amnions,  34  Ohio 
St.  518.    See  3  Fed  Statutes  Annotated,  79,  note. 

TEx  parte  Reggel,  114  U.  S.  642;  5  Sup.  Ct.  Rep.  1148;  29  L.  ed.  250.  In- 
dependent proof  apart  from  its  requisition  papers  that  the  accused  is  a  fugitive 
from  justice  need  not,  however,  be  demanded  by  the  governor  of  the  surrender- 
ing State.     Pettibone  v.  Nichols,  203  U.  S.  192. 


Interstate  Relations:  Exteadition.  227 

The  governor  cannot  be  compelled  by  judicial  process,  state  or 
federal,  to  take  action,  but  where  he  has  acted,  his  action  may  be 
inquired  into  by  the  courts.  Thus  in  Roberts  v.  Reilly8  the  court 
say:  "  The  Act  of  Congress  (§  5278,  R.  S.)  makes  it  the  duty 
of  the  executive  authority  of  the  State  to  which  such  person  has 
fled,  to  cause  the  arrest  of  the  alleged  fugitive  from  justice, 
whenever  the  executive  authority  of  any  State  demands  such 
person  as  a  fugitive  from  justice,  and  produces  a  copy  of  an 
indictment  found  or  affidavit  made  before  a  magistrate  of  any 
State,  charging  the  person  demanded  with  having  committed  the 
crime  therein,  certified  as  authentic  by  the  governor  or  chief 
Magistrate  of  the  State  from  whence  the  person  so  charged  has 
fled.  It  must  appear,  therefore,  to  the  governor  of  the  State 
to  whom  such  a  demand  is  presented,  before  he  can  lawfully  com- 
ply with  it;  first,  that  the  person  demanded  is  substantially 
charged  with  a  crime  against  the  laws  of  a  State  from  whose 
justice  he  is  alleged  to  have  fled,  by  an  indictment  or  an  affidavit, 
certified  as  authentic  by  the  governor  of  the  State  making  the 
demand ;  and  second,  that  the  person  demanded  is  a  fugitive  from 
the  justice  of  the  State  the  executive  authority  of  which  makes 
the  demand.  The  first  of  these  prerequisites  is  a  question  of  law 
and  is  always  open  upon  the  face  of  the  papers  to  judicial  inquiry, 
on  an  application  for  a  discharge  under  a  writ  of  habeas  corpus. 
The  second  is  a  question  of  fact,  which  the  governor  of  the  State 
upon  whom  the  demand  is  made  must  decide,  upon  such  evidence 
as  he  may  deem  satisfactory.  How  far  his  decision  may  be 
viewed  judicially  in  proceedings  in  habeas  corpus,  or  whether  it 
is  not  conclusive,  are  questions  not  settled  by  harmonious  judi- 
cial decisions,  nor  by  any  authoritative  judgment  of  this  court. 
It  is  conceded  that  the  determination  of  the  fact  by  the  executive 
of  the  State  in  issuing  his  warrant  of  arrest,  upon  a  demand  made 
on  that  ground,  whether  the  writ  contains  a  recital  of  an  express 
finding  to  that  effect  or  not,  must  be  regarded  as  sufficient  to 
justify  the  removal  until  the  presumption  in  its  favor  is  over- 
thrown by  contrary  proof."  9 

■  118  U.S.  80;  6  Sup.  Ct.  Rep.  291;  29  L.  ed.  544. 

•  See  also  Hyatt  v.  New  York,  188  U.  S.  691;  23  Sup.  Ct.  Rep  456;  47 
L.  ed.  657. 


228  United  States  Constitutional  Law. 

§  108.  Abduction  and  Forcible  Return  of  Fugitives  from  Justice. 
It  has  been  decided10  that  where  a  fugitive  has  been  forcibly 
abducted,  without  being  extradited,  from  a  State  to  which  he  had 
fled  to  the  State  from  which  he  had  tied,  neither  the  Federal 
Government,  nor  the  State  whose  peace  has  thus  been  violated,  nor 
the  abducted  one,  has  legal  redress,  unless,  indeed,  the  governor 
of  the  State  to  which  he 'has  been  taken  is  willing  to  return  him, 
and  to  extradite  the  persons  participating  in  the  abduction.  The 
case  of  Mahon  grew  out  of  the  following  facts.  Mahon,  charged 
with  murder  in  the  State  of  Kentucky,  fled  to  West  Virginia. 
During  a  correspondence  between  the  governors  of  the  two  States 
regarding  extradition,  he  was  forcibly  abducted  from  the  latter 
State  and  taken  to  the  former  State,  and  there  confined  in  jail 
pending  his  trial  for  murder.  Thereupon  the  governor  of  West 
Virginia,  on  behalf  of  that  State,  presented  in  a  District  Court 
of  the  United  States  a  petition  stating  these  facts,  and  adding 
that  he  had  made  a  requisition  upon  the  governor  of  Kentucky 
that  Mahon  be  released  and  returned  to  West  Virginia,  but  that 
such  requisition  had  been  refused.  Therefore,  a  writ  of  "habeas 
corpus  was  prayed  directed  to  the  keeper  of  the  jail  where  Mahon 
was  confined.  A  similar  petition  was  filed  by  Mahon  himself. 
Upon  return  of  the  writ  the  motion  for  discharge  was  denied  by 
the  court ;  appeal  was  taken  to  the  Circuit  Court,  where  the  order 
of  the  lower  court  was  affirmed;  and  from  this  order  an  appeal 
was  taken  to  the  Supreme  Court.  In  its  opinion,  affirming  the 
action  of  the  lower  tribunals,  the  Supreme  Court  say :  "  If  the 
States  of  the  Union  were  possessed  of  an  absolute  sovereignty, 
instead  of  a  limited  one,  they  could  demand  of  each  other  repara- 
tion for  an  unlawful  invasion  of  their  territory  and  the  surrender 
of  parties  abducted,  and  of  parties  committing  the  offense,  and  in 
case  of  refusal  to  comply  with  the  demand,  could  resort  to 
reprisals,  or  take  any  other  measures  that  they  might  deem  neces- 
sary as  redress  for  the  past  and  security  for  the  future.  But  the 
States  of  the  Union  are  not  absolutely  sovereign.  Their  sover- 
eignty is  qualified  and  limited  by  the  conditions  of  the  federal 

10 Mahon  v.  Justice,  127  U.  S.  700;  8  Sup.  Ct.  Rep.  1204;  32  L.  ed.  283. 


Interstate  Relations:  Extradition.  229 

Constitution.  They  cannot  declare  war  or  authorize  reprisals  on 
other  States.  Their  ability  to  prevent  the  forcible  abduction  of 
persons  from  their  territory  consists  solely  in  their  power  to  pun- 
ish all  violations  of  their  criminal  laws  committed  within  it, 
whether  by  their  own  citizens  or  by  the  citizens  of  other  States. 

If  such  violators  have  escaped  from  the  jurisdiction  of  the 
State  invaded,  their  surrender  can  be  secured  upon  proper  demand 
on  the  executive  of  the  State  to  which  they  have  fled.  The  sur- 
render of  the  fugitives  in  such  cases,  to  the  State  whose  laws 
have  been  violated,  is  the  only  aid  provided  by  the  laws  of  the 
United  States  for  the  punishment  of  depredations  and  violence 
committed  in  one  State  by  intruders  and  lawless  bands  from 
another  State.  The  offenses  committed  by  such  parties  are  against 
the  State;  and  the  laws  of  the  United  States  merely  provide  the 
means  by  which  their  presence  can  be  secured  in  case  they  have 
fled  from  its  justice.  Xo  mode  is  provided  by  which  a  person 
unlawfully  abducted  from  one  State  to  another  can  be  restored 
to  the  State  from  which  he  was  taken,  if  held  upon  any  process 
of  law  for  offenses  against  the  State  to  which  he  has  been  carried. 
If  not  thus  held  he  can,  like  any  other  person  deprived  of  his 
liberty,  obtain  his  release  on  habeas  corpus.  Whether  Congress 
might  not  provide  for  the  compulsory  restoration  to  the  State  of 
parties  wrongfully  abducted  from  its  territory  upon  application 
of  the  parties,  or  of  the  State,  and  whether  such  provision  would 
not  greatly  tend  to  the  public  peace  along  the  borders  of  the  several 
States,  are  not  matters  for  present  consideration.  It  is  sufficient 
now  that  no  means  for  such  redress  through  the  courts  of  the 
United  States  have  as  yet  been  provided."  u 

11  Justice  Bradley  was  not  convinced  by  tins  argument.  He  said:  "I  dis- 
sent from  the  judgment  of  the  court  in  this  case.  In  my  opinion,  the  writ  of 
habeas  corpus  was  properly  issued,  and  the  prisoner,  Mahon,  should  have  been 
discharged  and  permitted  to  return  to  West  Virginia.  He  was  kidnapped  and 
carried  into  Kentucky  in  plain  violation  of  the  Constitution  of  the  United 
State*,  and  is  detained  there  in  continued  violation  thereof.  It  is  true,  he  is 
charged  with  having  committed  a  crime  in  Kentucky.  But  the  Constitution 
provides  a  peaceable  remedy  for  procuring  the  surrender  of  persons  charged 
with  crime  and  fleeing  into  another  State.  This  provision  of  the  Constitution 
has  two  objects;  the  procuring  possession  of  the  offender,  and  the  prevention 


230  United  States  Constitutional  Law. 

In  Pettibone  v.  Xichols12  the  court  held  that  because  the  sur- 
rendered one  had  been  given  no  opportunity  at  the  time  of  his 
arrest  to  test  in  the  courts  of  the  surrendering  State  the  legality 
of  the  extradition,  no  federal  right  had  been  violated.  '"  That 
he  had  no  reasonable  opportunity  to  present  these  facts  before 
being  taken  from  Colorado,"  said  the  court,  "  constitutes  no  legal 
reason  why  he  should  be  discharged  from  the  custody  of  the 
Idaho  authorities.  jSTo  obligation  was  imposed  by  the  Constitu- 
tion or  laws  of  the  United  States  upon  the  agent  of  Idaho  to  so 

of  irritation  between  the  States,  which  might  arise  from  giving  asylum  to 
each  other's  criminals,  and  from  violently  invading  each  other's  territory  to 
capture  them.  It  clearly  implies  that  there  shall  be  no  resort  to  force  for  this 
purpose.  The  Constitution  has  abrogated,  and  the  States  have  surrendered,  all 
right  to  obtain  redress  from  each  other  by  force.  The  Constitution  was  made 
to  'establish  justice'  and  'insure  domestic  tranquillity;'  and  to  attain  this 
end  as  between  the  States  themselves,  the  judicial  power  was  extended  '  to 
controversies  between  two  or  more  States,'  and  they  were  enjoined  to  deliver 
up  to  each  other  fugitives  from  justice  when  demanded,  and  even  fugitives 
from  service.  This  manifest  care  to  provide  peaceable  means  of  redress  between 
them  is  utterly  irreconcilable  with  any  right  to  redress  themselves  by  force 
and  violence;  and,  of  course,  what  is  unconstitutional  for  the  States  is  uncon- 
stitutional for  their  citizens.  ...  A  requisition  would  not  apply.  That  is 
provided  for  by  the  extradition  of  fugitives  from  justice.  It  would  apply  for 
the  delivery  up  of  the  kidnappers,  but  not  for  the  restoration  of  their  victim. 
It  is  a  special  constitutional  remedy,  addressed  by  the  executive  of  one  State  to 
the  executive  of  another,  imposing  a  constitutional  duty  of  extradition  when 
properly  made  in  a  proper  case.  But  the  present  case  is  a  different  one.  It 
is  not  the  surrender  of  a  fugitive  from  justice  which  is  sought,  but  the  sur- 
render of  a  citizen  unconstitutionally  abducted  and  held  in  custody.  There 
must  be  some  remedy  for  such  a  wrong.  It  cannot  be  that  the  States,  in 
surrendering  their  right  of  obtaining  redress  by  military  force  and  reprisals, 
have  no  remedy  whatever.  It  was  suggested  by  the  counsel  that  the  State  of 
West  Virginia  might  sue  the  State  of  Kentucky  for  damages.  This  suggestion 
could  not  have  been  seriously  made.  No;  the  remedy  adopted  was  the  proper 
one.  Habeas  corpus  is  not  only  the  proper  legal  remedy,  but  a  most  salutary 
one.  It  is  calculated  to  allay  strife  and  irritation  between  the  States  by 
securing  a  judicial  and  peaceful  decision  of  the  controversy." 

In  Ker  v.  Illinois  (119  U.  S.  436;  7  Sup.  Ct.  Rep.  225;  30  L.  ed.  421)  the 
plaintiff  urged  that  in  violation  of  law  he  had  been  seized  in  a  foreign  country 
and  forcibly  brought  against  his  will  into  the  United  States,  in  violation  of  a 
treaty  between  the  United  States  and  the  foreign  country,  and  in  violation  of 
the  Fourteenth  Amendment.  The  court  held,  in  a  unanimous  opinion,  that 
notwithstanding  the  illegal  methods  pursued  in  bringing  the  accused  within 
the  State,  there  had  been  no  violation  of  a  federal  right. 

12  203  U.  S.  192;  27  Sup.  Ct.  Rep.  Ill;  51  L,  ed.  148. 


Interstate  Relations:  Extradition.  231 

time  the  arrest  of  the  petitioner,  and  so  conduct  his  deportation 
from  Colorado  as  to  afford  him  a  convenient  opportunity  before 
some  judicial  tribunal  sitting  in  Colorado,  to  test  the  question 
whether  he  was  a  fugitive  from  justice,  and,  as  such,  liable,  under 
the  act  of  Congress,  to  be  conveyed  to  Idaho  for  trial  there/' 

In  this  case  it  was  decided  also  that  the  fact  that  the  illegal 
abduction  from  the  State  was  by  persons  acting  under  the  author- 
ity of  that  State  did  not  take  the  case  out  of  the  operation  of  the 
doctrine  laid  down  in  the  Mahon  case.13 

§  109.  Trial  for  Offenses  Other  than  Those  for  which  Extradited. 

In  United  States  v.  Rauscher14  was  considered  the  question 
whether  a  fugitive  extradited  from  a  foreign  country  in  pursuance 
of  a  treaty  between  that  country  and  the  United  States  covering 
the  crime  charged,  could,  after  coming  into  the  custody  of  the 
United  States,  be  tried  upon  another  minor  offense  not  covered  by 
the  treaty.    The  court  held  that  he  could  not  be.15 

In  Lascelles  v.  Georgia,16  however,  it  was  held  that,  as  to 
fugitives  from  one  State  of  the  Union  to  another,  this  may  be 
done.  "  The  fallacy  of  the  argument  [that  this  may  not  be 
done],"  said  the  court,  "lies  in  the  assumption  that  the  States 
of  the  Union  occupy  toward  each  other,  in  respect  to  fugitives 
from  justice,  the  relation  of  foreign  nations,  in  the  same  sense 
in  which  the  General  Government  stands  toward  independent 
sovereignties  on  that  subject ;  and  in  the  further  assumption  that 
a  fugitive  from  justice  acquires  in  the  State  to  which  he  may 
flee  some  state  or  personal  right  to  protection,  improperly  called 
a  right  of  asylum,  which  secures  to  him  exemption  from  trial 
and  punishment  for  a  crime  committed  in  another  State,  unless 
such  crime  is  made  the  special  object  or  ground  of  his  rendition. 
.  .  .  The  sole  object  of  the  provision  of  the  Constitution  and 
act  of  Congress  to  carry  it  into  effect  is  to  secure  the  surrender 
of  persons  accused  of  crime  who  have  fled  from  the  justice  of  a 

is  Justice  McKenna  dissented  as  to  this. 
M  119  U.  S.  407;  7  Sup.  Ct.  Rep.  234;  30  L.  ed.  425. 

is  Chief  Justice  Watte  dissented.  See  also  Cosgrove  v.  Winney,  174  U.  S. 
64;   19  Sup.  Ct.  Rep.  598;  43  L.  ed.  SOT. 

16  14S  l.  S.  r.:$7;  13  Sup.  Ct.  Rep.  687;  37  L.  ed.  549. 


232  United  States  Constitutional  Law. 

State,  whose  laws  they  are  charged  with  violating.  Xeither  the 
Constitution,  nor  the  act  of  Congress  providing  for  the  rendition 
of  fugitives  upon  proper  requisition  being  made,  confers,  either 
expressly  or  by  implication,  any  right  or  privilege  upon  such 
fugitives  under  and  by  virtue  of  which  they  can  assert,  in  the 
State  to  which  they  are  returned,  exemption  from  trial  for  any 
criminal  act  done  therein."  1T 

§  110.  Who  is  a  "  Fugitive." 

"  To  be  a  fugitive  from  justice  .  .  .  it  is  not  necessary  that 
the  party  charged  should  have  left  the  State  in  which  the  crime 
is  alleged  to  have  been  committed,  after  an  indictment  found,  or 
for  the  purpose  of  avoiding  a  prosecution  anticipated  or  begun, 
but  simply  that,  having  within  a  State  committed  that  which  by 
its  laws  constitutes  a  crime,  when  he  sought  to  be  subjected  to 

17  The  opinion  continues:  The  case  of  United  States  v.  Kauscher  has  no 
application  to  the  question  under  consideration,  because  it  proceeded  upon  the 
ground  of  a  right  given  impliedly  by  the  terms  of  a  treaty  between  the 
United  States  and  Great  Britain,  as  well  as  expressly  by  the  acts  of  Congress 
in  the  case  of  a  fugitive  surrendered  to  the  United  States  by  a  foreign  nation. 
That  treaty  which  specified  the  offenses  that  were  extraditable,  and  the  statutes 
of  the  United  States  passed  to  caiTy  it  and  other  like  treaties  into  effect,  con- 
stituted the  supreme  law  of  the  land,  and  were  construed  to  exempt  the 
extradited  fugitive  from  trial  for  any  other  offense  than  that  mentioned  in 
the  demand  for  surrender.  There  is  nothing  in  the  Constitution  or  statutes 
of  the  United  States  in  reference  to  interstate  rendition  of  fugitives  from 
justice  which  can  be  regarded  as  establishing  any  compact  between  tlie  States 
of  the  Union,  such  as  the  Ashburton  treaty  contains,  limiting  their  operation 
to  particular  or  designated  offenses.  On  the  contrary,  the  provisions  of  the 
organic  and  statutory  law  embrace  crimes  and  offenses  of  every  character  and 
description  punishable  by  the  laws  of  the  State  where  the  forbidden  acts  are 
committed.  It  is  questionable  whether  the  States  could  constitutionally  enter 
into  any  agreement  or  stipulation  with  each  other  for  the  purpose  of  defining 
or  limiting  the  offenses  for  whicli  fugitives  would  or  should  bo  surrendered. 
But  it  is  settled  by  the  decision  of  this  court  that,  except  in  the  case  of  a 
fugitive  surrendered  by  a  foreign  government,  there  is  nothing  in  the  Con- 
stitution, treaties,  or  laws  of  the  United  States  which  exempts  an  offender, 
hi  ought  before  the  courts  of  a  State  for  an  offense  against  its  laws,  from  trial 
and  punishment,  even  though  brought  from  another  State  by  unlawful  violence 
or  by  abuse  of  legal  process."  Citing  Kcr.  v.  Illinois,  110  U.  S.  436;  7  Sup. 
Ct.  Rep.  225;  30  L.  ed.  421;  Mahon  v.  Justice,  127  U.  S.  700;  8  Sup.  Ct. 
Rep.  1204;  32  L.  ed.  2S3;  Cook  v.  Hart,  146  U.  S.  1S3;  13  Sup.  Ct.  Rep.  40; 
46  L.  ed.  934. 


Interstate  Relations:  Extradition.  233 

its  criminal  process  to  answer  for  his  offense,  he  has  left  its  juris- 
diction and  is  found  within  the  territory  of  another.7' ls 

In  Appleyard  v.  jlassachusetts19  it  was  held  that  the  belief  of 
the  accused,  when  leaving  the  demanding  State,  that  he  had  not 
committed  a  crime  against  the  State,  did  not  prevent  his  being 
a  fugitive  from  justice  within  the  meaning  of  the  Constitution 
and  the  acts  of  Congress  relating  to  extradition.  To  be  a  fugitive 
from  justice,  it  was  declared,  it  is  only  necessary  that  the  accused 
<houid  have  been  within  the  demanding  State  at  the  time  the 
crime  was  committed,  and  that  thereafter  he  be  found  within  the 
borders  of  another  State.  A  fugitive  from  justice  when  appre- 
hended in  the  State  to  which  he  has  tied,  and  held  for  extradition, 
though  restrained  of  his  liberty,  under  color  of  authority  derived 
from  the  Constitution  and  laws  of  the  United  States,  is  not  in 
the  custody  of  the  United  States,  but  of  the  States.  When  so 
apprehended,  however,  the  fugitive  has  the  right  to  test  the  law- 
fulness of  his  arrest  by  writ  of  habeas  corpus  issued  either  by  a 
state  or  federal  court.20 

In  Hyatt  v.  Now  York"1  it  was  definitely  held,  without  qualifica- 
tion, that  in  order  to  be  a  "  fugitive  from  justice  "  within  the 
meaning  of  the  constitutional  clause,  and  of  the  statutes  relating 
thereto,  the  person  sought  to  be  extradited  must  have  been  actually, 
and  not  merely  constructively,  within  the  demanding  State  at  the 
time  the  crime  charged  was  committed.  Furthermore,  in  this 
case  it  was  held  that  one  who  came  into  the  State  on  business 
for  a  single  day  eight  days  after  the  alleged  commission  of  the 
crime,  and  months  before  indictment  found,  was  not,  by  his 
departure  therefrom,  thereby  brought  within  the  terms  of  the 
statute  providing  for  rendition.22 

H  Roberts  v.  Reilly,  116  U.  S.  80;  6  Sup.  Ct.  Rep.  291 ;  29  L.  ed.  544. 
209  U.  S.  272. 

20  Roberts  v.  Reilly.  11G  U.  S.  80;  6  Sup.  Ct.  Rep.  291;  29  L.  ed.  544. 

21  188  U.  S.  691:  23  Sup.  Ct.  Rep.  456;  47  L.  ed.  657. 

--  •'  It  is  sufficient  for  the  party  charged  to  show  that  he  was  not  in  the 
State  at  tli"  times  named  in  the  indictments;  and  when  these  facts  are  proved 
sn  that  there  is  no  dispute  in  regard  to  them,  and  there  is  no  claim  of  any 
error  in  the  dates  named  in  the  indictments,  the  facts  so  proved  are  sufficient 
to  show  that  the  person  was  not  in  the  State  when  the  crimes  were,  if  ever, 
committed." 


234  United  States  Constitutional  Law. 

§  111.  Fugitive  Slaves. 

The  same  section  of  Article  IV  which  provides  for  the  extradi- 
tion of  fugitives  from  justice,  provides  that  "  no  person  held  to 
service  or  labor  in  one  State,  under  the  laws  thereof,  escaping 
into  another,  shall,  in  consequence  of  any  law  or  regulation 
therein,  be  discharged  from  such  service  or  labor,  but  shall  be 
delivered  up  on  claim  of  the  party  to  whom  such  service  or  labor 
may  be  due."  This  clause  is  practically  obsolete.23  An  elaborate 
examination  of  the  obligations  imposed  upon  the  States,  and  of  the 
extent  of  concurrent  legislative  power  in  the  premises  is  found  in 
Prigg  v.  Pennsylvania.24 

23  The  question  has  been  raised  whether,  since  the  adoption  of.  the  Thirteenth 
Amendment,  the  fugitive  slave  clause  of  the  Constitution  has  become 
completely  obsolete.  It  is  generally  so  held,  but  possibly  not  correctly  so. 
The  clause  in  question,  it  will  be  observed,  does  not  employ  the  word  slaves. 
Its  words  are  sufficiently  broad  to  make  the  clause  cover  not  only  slaves  but 
minor  apprentices  and  possibly  others  owing  services  under  contract.  Imleed, 
Charles  Sumner  in  a  debate  in  the  United  States  Senate  in  1864  maintained 
that,  properly  interpreted,  it  applied  only  to  such  and  not  to  slaves  at  all. 
(Congressional  Globe,  1st  Sess.,  38th  Cong,  Pt.  II,  pp.  1711,  1750).  The 
Thirteenth  Amendment  abolishes  not  only  slavery  but  all  "  involuntary  servi- 
tude,"  and  it  has  been  held  that  this  renders  illegal  an  attempt  to  compel, 
upon  the  part  of  adults,  the  performance  of  any  personal  services,  whether 
provided  for  by  contract  and  already  compensated  for,  or  not.  Of  course, 
however,  damages  for  breach  of  contract  to  render  personal  services,  may  be 
awarded.  But  this  does  not  render  illegal  state  laws  compelling  the  per- 
formance of  personal  services  on  the  part  of  minor  apprentices,  and  if  this  be 
so,  it  would  seem  that  a  minor  apprentice  escaping  from  a  State  where  his 
services  may  be  compelled,  into  another  State,  under  a  proper  law  for  the 
purpose,  be  claimed  and  removed  to  the  State  from  which  he  fled.  The  sub- 
ject of  peonage  will  be  considered  in  a  later  chapter. 

2«16  Pet.  539;  10  L.  ed.  1060. 


CHAPTER  XV. 

INTERSTATE  RELATIONS:  COMPACTS  BETWEEN  THE  STATES,  AND 
BETWEEN  THE  UNITED  STATES  AND  THE  STATES. 

§  112.  Compacts  between  the  States. 

The  control  of  international  relations  being  exclusively  vested 
in  the  Federal  Government,  it  necessarily  follows  that  the  several 
States  have  no  authority  to  enter  into  any  diplomatic  or  political 
relations  with  foreign  powers.1  Nevertheless,  from  an  excess 
of  caution,  the  federal  Constitution  declares  that,  "  No  State  shall 
enter  into  any  treaty,  alliance  or  confederation,"  and  that,  "  Xo 
State  shall,  without  the  consent  of  Congress,  .  .  .  enter  into 
any  agreement  or  compact  with  another  State,  or  with  a  foreign 
power." 

It  will  be  noticed  that  in  the  latter  of  these  two  constitutional 
clauses,  the  qualification  "  without  the  consent  of  Congress  "  is 
introduced.  There  has,  therefore,  never  been  any  doubt,  but  that, 
when  this  congressional  consent  is  given,  the  several  States  of 
the  American  Union  may  enter  into  agreements  and  compacts 
with  one  another,  so  long  as  their  effect  is  not  to  create  what  in 
political  language  is  termed  an  "  alliance  "  or  "  Confederation."  2 
Not  only  this ;  it  has  been  held  that  there  are  a  variety  of  subjects 
concerning  which  the  several  States  may  enter  into  agreements 
with  one  another  without  the  necessity  of  obtaining  the  consent 
of  Congress.  Upon  this  point,  in  Virginia  v.  Tennessee,3  the 
Supreme  Court  say:  "  There  are  many  matters  upon  which  dif- 
ferent States  may  agree  that  can  in  no  respect  concern  the  United 
States.  If,  for  instance,  Virginia  should  come  into  possession 
and  ownership  of  a  small  parcel  of  land  in  Xew  York  which  the 
latter  State  might  desire  to  acquire  as  a  site  for  a  public  building, 

i  See  chapter  XXXII. 

2  Green  v.  Riddle,  S  Wh.  1;  5  L.  ed.  547;  Poole  v.  Fleeger,  11  Pet.  185; 
9  L.  ed.  680. 

3  148  U.  S.  503;  13  Sup.  Ct.  Rep.  728;  37  L.  ed.  537. 

[235] 


236  United  States  Constitutional  Law. 

it  would  hardly  be  deemed  essential  for  the  latter  State  to  obtain 
the  consent  of  Congress  before  it  could  make  a  valid  agreement 
with  Virginia  for  the  purchase  of  the  land.  If  Massachusetts,  in 
forwarding  its  exhibits  to  the  World's  Fair  at  Chicago,  should 
desire  to  transport  them  a  part  of  the  distance  over  the  Erie  Canal, 
it  would  hardly  be  deemed  essential  for  that  .State  to  obtain  the 
consent  of  Congress  before  it  could  contract  with  ^ew  York  for 
the  transportation  of  the  exhibits  through  the  State  in  that  way. 
If  the  bordering  line  of  the  two  States  should  cross  some  malarious 
and  disease-producing  district,  there  could  be  no  possible  reason, 
on  any  conceivable  public  grounds,  to  obtain  the  consent  of  Con- 
gress for  the  bordering  States  to  agree  to  unite  in  removing  the 
cause  of  the  disease.  So,  in  the  case  of  threatened  invasion  of 
cholera,  plague,  or  other  causes  of  sickness  and  death,  it  would 
be  the  height  of  absurdity  to  hold  that  the  threatened  States 
could  not  unite  in  providing  means  to  prevent  and  repel  the 
invasion  of  the  pestilence  without  obtaining  the  consent  of  Con- 
gress, which  might  not  be  at  the  time  in  session." 

"  If,  then,"  the  court  asks,  "  the  terms  '  compact '  or  i  agree- 
ment '  in  the  Constitution  do  not  apply  to  every  possible  compact 
or  agreement  between  one  State  and  another,  for  the  validity  of 
which  the  consent  of  Congress  must  be  obtained,  to  what  com- 
pacts or  agreements  does  the  Constitution  apply  \  "  "  Looking 
at  the  clause  in  which  the  terms  '  compact '  or  "  agreement ' 
appear,"  answers  the  court,  "  it  is  evident  that  the  prohibition 
is  directed  to  the  formation  of  any  combination  tending  to  the 
increase  of  political  power  in  the  States,  which  may  encroach 
upon  or  interfere  with  the  just  supremacy  of  the  Lmited  States."  4 

The  court  continue:  "  Compacts  or  agreements  —  and  we  do 
not  perceive  any  difference  in  the  meaning,  except  that  the  word 
'  compact '  is  generally  used  with  reference  to  more  formal  and 
serious  engagements  than  is  usually  implied  in  the  term  '  agree- 
ment ' —  cover  all  stipulations  affecting  the  conduct  or  claims  of 
the  parties.     The  mere  selection  of  parties  to  run  and  designate 

4  The  court  go  on  to  quote  with  approval  from  Story's  Commentaries  upon 
the  Constitution,  Sec.  1403. 


IXTERsTATK    ReLAT]  IJkTWEEX    SlATl.s.        %S7 

the  boundary  line  between  two  States,  or  to  designate  what  line 
should  be  run,  of  itself  imports  no  agreement  to  accept  the  line 
run  by  them,  and  such  action  of  itself  does  not  come  within  the 
prohibition.  Xor  does  legislative  declaration,  following  such  line, 
that  it  is  correct,  and  shall  thereafter  be  deemed  the  true  and 
established  line,  import  by  itself  a  contract  or  agreement  with 
the  adjoining  State.  It  is  a  legislative  declaration  which  the 
State  and  individuals  affected  by  the  recognized  boundary  line 
may  invoke  against  the  iState  as  an  admission,  but  not  as  a  com- 
pact or  agreement.  The  legislative  declaration  will  take  the 
form  of  an  agreement  or  compact  when  it  recites  some  considera- 
tion for  it  from  the  other  party  affected  by  it,  for  example,  as 
made  upon  a  similar  declaration  of  the  border  or  contracting 
State.  The  mutual  agreements  may  then  be  reasonably  treated 
as  made  upon  mutual  considerations.  The  compact  or  agree- 
ment will  then  be  within  the  prohibition  of  the  Constitution  or 
without  it.  according  as  the  establishment  of  the  boundary  line 
may  lead  or  not  to  the  increase  of  the  political  power  or  influence 
of  the  States  affected,  and  thus  encroach  or  not  upon  the  full 
and  free  exercise  of  federal  authority.  If  the  boundary  estab- 
lished is  so  run  as  to  cut  off  an  important  and  valuable  portion 
of  a  State,  the  political  power  of  the  State  enlarged  would  be 
affected  by  the  settlement  of  the  boundary;  and  to  an  agreement 
for  the  running  of  such  a  boundary  or  rather  for  its  adoption 
afterward,  the  consent  of  Congress  may  well  be  required.  But 
the  running  of  a  boundary  may  have  no  effect  upon  the  political 
influence  of  either  State,  it  may  simply  serve  to  mark  and  define 
that  which  actually  existed  before,  but  was  undefined  and 
unmarked.  In  that  case  the  agreement  for  the  running  of  the 
line,  or  its  actual  survey,  would  in  no  respect  displace  the  rela- 
tion of  either  of  the  States  to  the  General  Government.  There 
was.  therefore,  no  compact  or  agreement  between  the  States  in 
this  case  which  required,  for  its  validity,  the  consent  of  Congress, 
within  the  meaning  of  the  Constitution,  until  they  had  passed 
upon  the  report  of  the  commissioner-,  ratified  their  action,  and 
mutuallv  declared  the  lxmndarv  established  bv  them  to  be  the 


238  United  States  Constitutional  Law. 

true  and  real  boundary  between  the  States.  Such  ratification 
was  mutually  made  by  each  State  in  consideration  of  the  ratifica- 
tion of  the  other."  5 

§  113.  Compact  Between  the  States  and  the  United  States. 

Closely  connected  with  the  question  of  compacts  of  the  States,. 
inter  se,  is  that  of  compacts  between  the  individual  States  and 
the  United  States. 

Of  compacts  of  this  character  which  have  been  entered  into, 
the  greater  number  have  been  made  at  the  time  the  States  in 
question  have  been  admitted  as  States  into  the  Union,  and  have 
attempted  to  place  such  States  under  restrictions  not  directly  de- 
ducible  from  the  federal  Constitution,  and  are,  therefore,  restric- 
tions not  resting  upon  the  other  States.  To  this  extent  they  have 
been  in  violation  of  the  general  principle  of  the  equality  of  the 
States.  This  principle,  it  may  be  said,  is  not  expressly  stated  in 
the  federal  Constitution,  but  would  seem  to  be  implied  in  the 
general  nature  of  that  instrument.6 

The  Constitution,  without  distinguishing  between  the  original 
and  new  States,  defines  the  political  privileges  which  the  States 

5 The  opinion  continues:  "  The  Constitution  does  not  state  when  the  consent 
of  Congress  shall  he  given,  whether  it  shall  precede  or  follow  the  compact 
made,  or  whether  it  shall  be  express  or  may  be  implied.  In  many  cases  the 
consent  will  usually  precede  the  compact  or  agreement,  as  to  where  it  is  to  lay 
a  duty  of  tonnage,  to  keep  troops  or  ships  of  war  in  time  of  peace,  or  to 
engage  in  war.  But  where  the  agreement  relates  to  a  matter  which  could  not 
well  be  considered  until  its  nature  is  fully  developed,  it  is  not  perceived  why 
the  consent  may  not  be  subsequently  given.  Story  says  that  the  consent  may 
be  implied,  and  is  always  to  be  implied  when  Congress  adopts  the  particular 
act  by  sanctioning  its  objects  and  aiding  in  enforcing  thom;  and  observes  that 
where  a  State  is  admitted  into  the  Union,  notoriously  upon  a  compact  made 
between  it  and  the  State  of  which  it  previously  composed  a  part,  there  the 
act  of  Congress,  admitting  such  State  into  the  Union,  is  an  implied  consent  to 
the  terms  of  the  compact.  Knowledge  by  Congress  of  the  boundaries  of  a 
State,  and  of  its  political  subdivisions,  may  reasonably  be  presumed,  as  much 
of  its  legislation  is  affected  by  them,  such  as  relates  to  the  territorial  juris- 
diction of  the  courts  of  the  United  States,  the  extent  of  their  collection  dis- 
tricts, and  of  districts  in  which  process,  civil  and  criminal,  of  their  courts 
may  be  served  and  enforced." 

s  See  article  "Are  the  States  Equal  under  the  Constitution?"  by  W.  A. 
Dunning,  in  Political  Science  Quarterly,  III,  425. 


INTERSTATE  RELATIONS:   COMPACTS  BETWEEN  STATES.       239 

are  to  enjoy,  and  declares  that  all  powers  not  granted  to  the 
United  States  shall  be  considered  as  reserved  "  to  the  States." 
From  this  it  almost  irresistibly  follows  that  Congress  has  not  the 
right  to  provide  that  certain  members  of  the  Union,  possessing 
full  statehood,  shall  have  their  constitutional  competences  in  any 
manner  less  than  that  of  their  sister  States.  According  to  this, 
then,  though  Congress  may  exact  of  territories  whatever  condi- 
tions it  sees  fit  as  requirements  precedent  to  their  admission  as 
States,  when  admitted  as  such,  it  .cannot  deny  to  them  any  of  the 
privileges  and  immunities  which  the  other  Commonwealths  enjoy. 

§  114.  Equality  of  the  States. 

The  principle  of  the  equality  of  the  States  had  its  origin  before 
the  adoption  of  the  Constitution  itself.  In  the  acts  of  cession  by 
the  several  States  through  which  the  old  Confederacy  obtained  the 
control  of  the  Xorthwest  Territory,  it  was  provided  that  from 
this  vast  area  new  States  should,  from  time  to  time,  be  organized, 
which  should  be  admitted  to  the  Confederacy,  with  the  same 
sovereign  rights  enjoyed  by  other  States. 

The  famous  Xorthwest  Ordinance  of  1787,  re-enacted  by  the 
Congress  of  the  United  States  in  1789,  after  laying  down  the 
general  conditions  upon  which  statehood  was  to  be  accorded, 
declared  that  the  States,  so  admitted,  should  be  "  on  an  equal 
footing  with  the  original  States  in  all  respects  whatever." 

Notwithstanding,  however,  this  requirement  of  equality,  Con- 
gress at  an  early  date  began  the  practice  of  exacting  from  would-be 
States  various  promises  by  the  terms  of  which  they  were  to  hold 
themselves  bound  after  their  admission  to  the  Union  and  until 
Congress  should  release  them.  Thus,  for  example,  beginning  in 
1802  with  Ohio,  the  first  State  formed  from  the  Xorthwest  Terri- 
tory, it  was  demanded  by  Congress  that  that  State,  when  ad- 
mitted, should  pass  an  ordinance,  irrevocable  without  the  consent 
of  Congress,  not  to  tax  for  five  years  all  public  lands  sold  by  the 
United  States;  and  a  requirement  substantially  similar  was  de- 
manded of  many  of  the  States  later  formed.  When  Missouri  was 
admitted  in  1821  it  was  required  to  declare  that  its  Constitution 


240  United  States  Constitutional  Law. 

should  never  be  so  construed  as  to  permit  its  legislature  to  pass 
a  law  excluding  citizens  of  other  States  from  the  enjoyment  of 
any  of  the  privileges  and  immunities  granted  them  by  the  federal 
Constitution.7 

Beginning  with  the  admission  of  Nevada  in  1S64,  the  promises 
exacted  of  Territories  seeking  admission  as  States  assumed  a 
more  political  character.  Of  Xevada  it  was  required  that  her 
Constitution  should  harmonize  with  the  Declaration  of  Inde- 
pendence and  that  the  right  to  vote  should  not  be  denied  persons 
on  account  of  their  color.  Of  Xebraska,  admitted  in  1867,  it  was 
demanded  that  there  should  be  no  denial  of  the  franchise  or  any 
other  right  on  account  of  race  or  color,  Indians  excepted.  Of  the 
States  that  had  attempted  secession,  still  more  radical  were  the 
requirements  .precedent  to  the  granting  to  them  of  permission 
again  to  enjoy  the  other  rights  which  they  had  for  the  time  being 
forfeited.  Of  all  of  them  it  was  required  that  there  should  be, 
by  their  laws,  no  denial  of  the  right  to  vote  except  for  crime ; 
and  of  three,  that  negroes  should  not  be  disqualified  from  holding 
office,  or  be  discriminated  against  in  the  matter  of  school  privi- 
leges.8 Finally,  Utah,  when  admitted  as  a  State  in  1894,  was 
required  by  Congress  by  the  Enabling  Act  to  make  "  by  ordinance 
irrevocable  without  the  consent  of  the  United  States  and  the 
people  of  the  United  States,  provisions  for  perfect  religious  tolera- 
tion and  for  the  maintenance  of  public  schools  free  from  sectarian 
control;  and  that  polygamous  or  plural  marriages  are  forever 
abolished." 

It  would  seem  that  as  regards  the  enforceability  of  these  con- 
tracts, a  distinction  is  to  be  made  between  those  that  attempt 
to  place  the  State  under  political  restrictions  not  imposed  upon 
all  the  States  of  the  Union  by  the  federal  Constitution,  and  those 
which  seek  the  future  regulation  of  private,  proprietary  interests. 

7  A  superfluous  requirement,  for  with  or  without  such  a  promise,  a  State  is, 
and  was  then,  constitutionally  unable  to  deprive  any  one  of  the  rights  guar- 
anteed by  the  federal  Constitution. 

8  By  the  adoption  of  the  Fourteenth  and  Fifteenth  Amendments,  some  of 
these  limitations  have  been  made  applicable  to  all  the  States  and  thus  an 
equality,  as  to  them,  created. 


INTERSTATE    iiKI.ATlo.Xs:    (  '<  >M  PACTS   BETWEEN  STATES.        241 

The  first  class  of  these  agreements  the  Supreme  Court  has 
repeatedly  held  are  not  enforceable  against  the  State  after  it  has 
been  admitted  into  the  Union. 

In  Pollard  v.  Ilagen9  the  court  held  that  a  stipulation  of  an 
act  of  Congress  passed  for  the  admission  of  th©  State  of  Alabama 
into  the  Union  that  "  all  navigable  waters  within  the  said  State 
shall  forever  remain  public  highways, 'free  to  the  citizens  of  said 
State,  and  of  the  United  States,  without  any  tax,  duty,  impost  or 
toll  therefor,  imposed  by  said  State  "  did  not  give  to  the  United 
States  any  greater  control  of  the  navigable  waters  of  that  State 
than  was  possessed  by  the  Federal  Government  over  the  waters 
of  any  other  State.10  » 

In  Escanaba  v.  Lake  Michigan  Transportation  Co.11  the  court 
declared,  relative  to  certain  limitations  placed  upon  the  govern- 
ing powers  of  Illinois  while  in  a  territorial  condition:  "What- 
ever the  limitations  upon  her  powers  as  a  government  while 
in  a  territorial  condition,  whether  from  the  Ordinance  of  17*7 
or  tho  legislation  of  Congress,  it  ceased  to  have  any  operative 
force,  except  as  voluntarily  adopted  by  her  after  she  became  a 
State  of  the  Union.  On  her  admission,  she  at  once  became  en- 
titled to  and  possessed  of  all  the  rights  of  dominion  and  sover- 
eignty which  belonged  to  the  original  States.  .She  was  admitted 
and  could  be  admitted  only  on  the  same  footing  with  them." 

And  in  Boln  v.  Xebraska12  it  was  declared:  "  This  court  has 
held  in  many  cases  that,  whatever  be  the  limitations  upon  the 
power  of  a  territorial  government,  they  cease  to  have  any  opera- 
tive force,  except  ;is  voluntarily  adopted  after  such  Territory  has 
become  a  State  of  the. Union.  Upon  the  admission  of  a  State  it 
becomes  entitled  to  and  possesses  all  the  rights  of  dominion  and 

9  3  How.  212;  11  L.  ed.  565. 

10C/.   Strader  v.    Graham,   10  How.   82;    13   L.  ed.   337;   Weber  v.   Harbor 
-Commissioners,   18   Wall.   57:    21   L.  ed.   798;    Sands  v.  Manistee  River   Imp. 
Co.,   123  U.  S.  288;   8  Sup.  Ct.  Rep.  113;  31  L.  ed.   149;  Shively  v.  Bowlby. 
152  U.  S.  1;   14  Sup.  Ct.  Rep.  548;  38  L.  ed.  331. 
1U07  U.  S.  678;  2  Sup.  Ct.  Rep.  185;  27  L.  ed.  442. 
"  176  U.  S.  83;  20  Sup.  Ct.  Rep.  287;  44  L.  ed.  382. 

1G 


242  United  States  Constitutional  Law. 

sovereignty  which  belongs  to  the  original  States,  and,  in  the 
language  of  the  act  of  1867  admitting  the  State  of  Xebraska, 
it  stands  upon  an  equal  footing  with  the  original  States  in  all 
respects  whatever." 

In  the  foregoing  cases  reference  was  had,  as  appears  from  the 
quotations,  to  States  created  out  of  Territories.  There  would 
seem  to  be,  however,  no  reason  why  the  same  doctrine  should  not 
be  applied  to  the  political  limitations  exacted  of  a  number  of  the 
Southern  States  at  the  time  of  their  readmission  to  full  constitu- 
tional privileges  after  the  period  of  the  Civil  War  and  Recon- 
struction. 

§  115.  Contracts  Regarding  Proprietary  Interests. 

Turning  now  to  a  consideration  of  the  continued  validity  and 
enforceability  of  compacts  between  the  States  and  General  Govern- 
ment with  reference  to  proprietary  interests,  one  finds  the  com- 
paratively recent  case  of  Stearns  v.  Minnesota13  most  illuminat- 
ing. That  case  involved  the  construction  and  application  of  an 
agreement  made  by  the  State  with  the  United  States  at  the  time 
of  its  admission  to  the  Union,  with  reference  to  public  lands, 
within  its  boundaries,  owned  by  the  United  States.  The  court 
in  its  opinion  say:  "  That  these  provisions  of  the  Enabling  Act 
and  the  Constitution,  in  form  at  least,  made  a  compact  between 
the  United  States  and  the  State,  is  evident.  In  an  inquiry  as 
to  the  validity  of  such  a  compact  this  distinction  must  at  the 
outset  be  noticed.  There  may  be  agreements  or  compacts 
attempted  to  be  entered  into  between  two  States,  or  between  the 
State  and  the  Nation,  in  reference  to  political  rights  and  obliga- 
tions, and  there  may  be  those  solely  in  reference  to  property 
belonging  to  one  or  to  the  other.  That  different  considerations 
may  underlie  the  question  as  to  the  validity  of  these  two  kinds 
of  compacts  or  agreements  is  obvious.  It  has  often  been  said 
that  a  State  admitted  into  the  Union  enters  therein  in  full 
equality  with  all  the  others,  and  such  equality  may  forbid  any 
agreement  or  compact  limiting  or  qualifying  political  rights  and 

is  179  U.  S.  223;  21  Sup.  Ct.  Rep.  73;  45  L.  ed.  162. 


Interstate  Relations  :  Compacts  Between  States.     243 

obligations;  whereas,  on  the  other  hand,  a  mere  agreement  in 
reference  to  property  involves  no  question  of  equality  of  status, 
but  only  of  the  power  of  a  State  to  deal  with  the  Nation  or  with 
any  other  State  in  reference  to  such  property.  The  case  before 
us  is  one  involving  simply  an  agreement  as  to  property  between 
a  State  and  the  Nation.  That  a  .State  and  the  Nation  are  com- 
petent to  enter  into  an  agreement  of  such  a  nature  with  one 
another  has  been  affirmed  in  past  decisions  of  this  court,  and 
that  they  have  been  frequently  made  in  the  admission  of  new 
States,  as  well  as  subsequently  thereto,  is  a  matter  of  history. 
.  .  .  We  are  of  opinion  that  there  was  a  valid  contract  made 
with  these  companies  in  respect  to  the  taxation  of  these  lands  — 
a  contract  which  it  was  beyond  the  power  of  the  State  to  impair ; 
that  this  subsequent  legislation  does  impair  that  contract  and 
cannot,  therefore,  be' sustained." 

§  116.  Suits  Between  States. 

This  subject  will  be  treated  in  connection  with  the  Judicial 
Power  of  the  United  States.14 

H  See  chapter  LIIL 


CHAPTER  XVI. 

THE   PERSONS    SUBJECT   TO   THE   JURISDICTION   OF  THE   UNITED 
STATES:   STATUS  OF  ALIENS. 

§  117.  Territorial  Sovereignty. 

By  international  law  and  by  the  public  law  of  all  civilized 
States  the  legal  jurisdiction  of  a  State  is  generally  recognized 
to  extend  over  all  persons  for  the  time  being  within  the  districts 
under  its  de  facto  control.  The  only  exceptions,  if  exceptions 
they  be,  are  those  coming  within  the  principle  of  extraterri- 
toriality. A  State  has  jurisdiction  over,  not  only  its  native-born 
and  naturalized  subjects,  but  all  the  .subjects  of  other  States 
permanently  or,  at  any  given  time,  temporarily  resident,  within 
its  borders. 

Nowhere,  perhaps,  has  this  general  constitutional  principle 
been  better  stated  than  by  Marshall  in  the  great  case  of  The 
Exchange,1  decided  in  1812.  In  the  opinion  rendered  in  this 
case,  the  Chief  Justice,  after  pointing  out  that  the  jurisdiction 
of  a  State  within  its  own  territory  is  necessarily  exclusive  as  well 
as  absolute,  goes  to  show  that  the  exceptions  to  this  principle, 
generally  recognized  in  practice,  are  themselves  founded  upon  the 
will  of  the  State  recognizing  them.  Thus  the  so-called  doctrine 
of  extraterritoriality,  though  often  spoken  of  as  a  fiction,  namely 
that  the  diplomatic  representatives  and  their  establishments,  and 
public  ships  of  war,  are  upon,  or  are  parts  of,  the  territory  of 
the  States  to  which  they  belong,  is  not  a  necessary  fiction.  Such 
immunity  from  local  jurisdiction  as  exists  is  due  to  the  consent 
of  the  local  State.  That  is  to  say,  it  is  by  an  exercise  of  the  juris- 
diction of  that  State  that  these  persons  are  exempted  from  the 
operation,  though  entitled  to  the  protection,  of  the  local  law. 

§  118.  De  Facto  Control. 

The  authority  of  States  over  districts  and  their  inhabitants 
temporarily  subject  to  its  de  facto  control,  will  be  considered  in 

17  Cr.  116;  3L.  ed.  287. 

[244] 


Peesoxs  Subject  to  Jurisdiction  of  United  States.     245 

another  chapter.  At  this  place  it  will  be  sufficient  to  quote  the 
opinion  in  United  States  v.  Rice2  in  which,  with  reference  to  the 
status  of  the  port  of  Castine,  Maine,  at  the  time  it  was  in  the 
possession  of  the  British  authorities  during  the  War  of  1812,  the 
Supreme  Court,  speaking  through  Justice -Story,  said:  u-  By  the 
conquest  and  military  occupation  of  Castine,  the  enemy  acquired 
that  firm  possession  which  enabled  him  to  exercise  the  fullest 
rights  of  sovereignty  over  that  place.  The  sovereignty  of  the 
United  States  over  the  territory  was,  of  course,  suspended,  and 
the  laws  of  the  United  States  could  no  longer  be  rightfully  en- 
forced there,  or  be  obligatory  upon  the  inhabitants  who  remained 
and  submitted  to  the  conquerors.  By  the  surrender,  the  inhabit- 
ants passed  under  a  temporary  allegiance  to  the  British  Govern- 
ment, and  were  bound  by  such  laws,  and  such  only,  as  it  chose  to 
recognize  and  impose.  From  the  nature  of  the  case,  no  other 
laws  could  be  obligatory  upon  them;  for,  where  there  is  no  pro- 
tection or  allegiance  or  sovereignty,  there  can  be  no  claim  to 
obedience." 

Upon  this  same  point,  Chancellor  Kent  in  his  Commentaries 
says :  "  If  a  portion  of  the  country  be  taken  and  held  by  con- 
quest in  war,  the  conqueror  acquires  the  rights  of  the  conquered 
as  to  its  dominion  and  government,  and  children  born  in  the 
armies  of  a  State,  while  abroad,  and  occupying  a  foreign  country, 
are  deemed  to  be  born  in  the  allegiance  of  the  sovereign  to  whom 
the  army  belongs.  It  is  equally  the  doctrine  of  the  English  com- 
mon law  that  during  such  hostile  occupation  of  a  territory,  and 
tin  parents  adhering  to  the  enemy  as  subjects  de  facto,  their 
children,  born  under  such  a  temporary  dominion,  are  not  born 
under  the  ligeance  of  the  conquered."  And,  he  adds,  there  is 
no  reason  why  the  same  principles  should  not  apply  to  the  United 
States.3 

§  119.  Status  of  Aliens. 

As  regards  the  status  of  aliens,  that  is,  subjects  of  other  States, 
who  are  temporarily  or  permanently  domiciled  in  a  State,  it  may 

2  4  Wh.  24«:   4  L.  ed.  5f>2. 
s  6th  ed.  II,  42. 


216  United  States  Constitutional  Law. 

be  said  that  the  fact  that  they  are  within  the  territorial  limits 
makes  them,  in  a  broad  constitutional  sense,  members  of  that  State 
and,  therefore,  subject  to  the  authority  of  its  laws,  though  they 
still  remain  the  subjects  or  citizens  of  their  native  States.  In 
fact,  being  under  the  protection  of  the  State  where  they  are,  they 
owe  an  allegiance  to  it  according  to  the  maxim  proteciio  trahit 
subj&ctionem,  et  subjectio  protectionem.  Webster,  when  Secre- 
tary of  .State,  in  his  report  on  Thrasher's  Case  in  1851,  de- 
clared :  "  Independently  of  a  residence  with  intention  to  con- 
tinue such  residence,  independently  of  the  taking  of  any  oath  of 
allegiance,  or  of  renouncing  any  former  allegiance,  it  is  well 
known,  that  by  the  public  law  an  alien,  or  a  stranger  born,  for  so 
long  a  time  as  he  continues  within  the  dominions  of  a  foreign  gov- 
ernment, owes  obedience  to  the  laws  of  that  government,  and  may 
be  punished  for  treason  or  other  crimes  as  a  native-born  subject 
might  be,  unless  his  case  is  varied  by  some  treaty  speculations."  4 
This  principle  thus  stated  by  Webster  has  been  several  times 
quoted  and  approved  by  the  Supreme  Court.5 

§  120.  Double  Allegiance. 

There  is  no  objection  to  predicating  the  existence  of  this  double 
allegiance,  for,  despite  the  fact  that  modern  sovereignty  is  gen- 
erally spoken  of  as  territorial,  it  is,  in  fact,  personal,  and  imports 
a  personal  relationship  between  the  sovereign  political  person  — 
the  State  —  and  its  political  inferiors,  its  subjects.  Sovereignty 
in  truth  is  a  purely  legal  concept  and  exists  only  within  the  field 
of  constitutional  law.  International  relations,  the  relations  be- 
tween States,  are  not  legal  in  character,  and  international  laws, 
so-called,  are  not  laws  at  all  in  a  strict  positive  sense.  They  are 
not  commands  from  a  legal  superior  to  a  legal  inferior,  but  are 
regulations  governing  the  conduct  of  political  equals.  Within  this 
general  international  field  the  authority  or  jurisdiction  of  govern- 
ments is  strictly  territorial  —  over  each  territorial  district  there 

4  Webster's  Works,  VI,  526. 

6  United  States  v.  Carlisle,  16  Wall.  147;  21  L.  ed.  426;  United  States  v. 
Wong  Kim  Ark,  169  U.  S.  649;  18  Sup.  Ct.  Rep.  456;  42  L.  ed.  890. 


Persons  Subject  to  Jurisdiction  of  United  States.     247 

is  a  particular  de  facto  government  recognized  by  the  various 
States  to  have  a  right  based  upon  actual  power,  to  exercise  politi- 
cal control,  and,  correspondingly,  is  held  by  them  responsible  for 
whatever  occurs' within  such  districts.  Internationally  speaking, 
therefore,  jurisdiction  is  territorial  and  exclusive.  Over  any  given 
territory,  one,  and  only  one,  governing  body  is  recognized  to  have 
legitimate  authority.  But  sovereignty,  denoting,  as  said,  legal 
supremacy,  a  personal  relationship,  as  predicated  upon  a  legal  sub- 
jection or  allegiance  of  individuals  to  a  legal  superior,  is  not 
territorial;  and  there  is  thus  no  inherent  difficulty  in  a  sovereign 
claiming  legal  authority  over  individuals  located  outside  of  the 
limits  of  the  territory  conceded  by  other  nations  to  belong  to  it; 
or  of  two  or  more  States  claiming  at  the  same  time,  under  the 
operation  of  their  respective  municipal  laws,  the  allegiance  of  the 
same  individual,  as  for  instance,  as  we  shall  presently  see,  when 
one  State  naturalizes  the  subject  of  a  State  whose  municipal  law 
does  not  recognize  the  right  of  expatriation. 

From  the  viewpoint  of  international  relations,  as  we  have  just 
seen,  the  law  of  one  State  is  not  permitted  by  other  States  to 
operate  outside  of  the  territorial  limits  of  the  State  which  pro- 
mulgates it,  and,  therefore,  though  claiming  a  legal  authority 
over  an  individual  outside  of  such  limits,  a  State  will  not  be  per- 
mitted by  other  States  to  exercise  it  against  the  consent  of  the 
State  within  whose  limits  the  individual  is  situated.  But  that 
does  not  render  impossible  the  existence  of  or  invalidate  such  a 
claim,  for  when,  if  ever,  such  an  individual  is  apprehended  within 
the  territory  of  the  State  claiming  authority  over  him  he  may 
be  held  responsible  for  acts  committed  while  abroad.  And  also, 
as  still  more  plainly  showing  the  personal  and  non-territorial 
character  of  allegiance  and  sovereignty  is  the  principle  universally 
recognized  both  in  municipal  and  international  law,  that  a  citizen 
of  a  State  is  in  many  cases  entitled  to  the  protection  of  that  State 
while  abroad.  Thus  he  does  not  in  any  way  lose  his  citizenship 
by  departing  from  the  territorial  limits  of  the  State  of  which  he 
is  a  member,  nor  does  he  escape  from  beneath  its  law  or  cease  to  be 
entitled  to  its  protection. 


248  United  States  Constitutional  Law. 

§  121.  Status  of  Aliens  in  the  United  States. 

In  the  preceding  section  it  has  been  shown  that  a  State  has 
absolute  legal  authority  over  all  persons  within  its  territorial 
jurisdiction,  and  over  its  own  citizens  wherever  they  may  be.  In 
the  exercise,  however,  of  this  authority  over  persons  within  its 
territorial  limits  who  are  claimed  as  citizens  by  other  States,  that 
is,  over  resident  aliens,  or  naturalized  citizens  whose  native 
States  do  not  recognize  the  right  of  expatriation,  this  legal  power, 
though  not  subject  to  legal  limitation,  is  actually  subject  to  cer- 
tain limitations  which  international  custom  has  created.  Thus 
each  State  demands  that  its  subjects,  when  abroad,  shall  receive 
protection  in  life  and  property,  and  in  their  private  rights  be  not 
unduly  discriminated  against  by  the  foreign  State  in  which  they 
may  happen  to  be.  Also  States  do  not  permit  the  foreign  States  to 
require  from  their  subjects  the  performance  of  duties  that  prop- 
erly may  be  required  only  of  citizens,  as,  for  example,  service  in 
its  army.  Resident  aliens  may  indeed  be  required  to  lend  their 
assistance,  by  service  in  the  militia  and  police  forces,  or  in  a  posse 
comitatus,  to  put  down  domestic  disorder;  for,  enjoying  the  pro- 
tection of  the  local  law,  they  may  fairly  be  required  to  aid  in  over- 
coming resistance  to  its  enforcement.  But  they  may  not  be  com- 
pelled to  serve  in  the  national  military  forces  in  cases  of  public 
war. 

During  the  Civil  War,  Great  Britain  did  not  object  to  the  en- 
rollment in  the  local  militia  of  her  citizens  domiciled  in  the 
United  States ;  and  in  the  case  of  one  Scott,  who  had  declared 
his  intention  of  becoming  an  American  citizen,  refused  to  take 
any  steps  to  prevent  his  enrollment  in  the  army  in  the  field. 
Great  Britain,  however,  emphatically  protested  to  the  government 
of  the  Southern  Confederacy  against  the  conscription  of  her  sub- 
jects in  the  Southern  States.  Several  of  the  leading  European 
powers  protested  against  the  attempt  on  the  part  of  the  United 
States  to  conscript  into  its  armies  domiciled  aliens  who  had  de- 
clared their  intention  of  becoming  American  citizens,  whereupon 
the  United  States  granted  to  such  aliens  sixty-five  days  in  which 
to  leave  the  country,  upon  failure  to  do  which  they  were  held  liable 


Persons  Subject  to  Jurisdiction  of  United  States.     249 

to  conscription;  and  this  arrangement  was  acquiesced  in  by  the 
Powers  concerned,  though  not  without  complaint  that  the  prin- 
ciples of  international  comity  were  being  violated.  When,  in 
1873,  the  "State  of  Nicaragua  attempted  by  an  amendment  to  her 
institution  to  make  foreigners  liable  to  military  and  other  pub- 
lic services,  protests  from  the  American  Minister  were  made,  in 
consequence  of  which  the  project  was  abandoned. 

§  122.  Domiciled  Aliens. 

A  distinction  is  made  in  practically  all  countries  between  domi- 
ciled and  non-domiciled  aliens,  with  reference  to  the  legal  burdens 
that  may  be  imposed  and  the  civil  and  political  rights  that  may  be 
enjoyed. 

An  alien  becomes  domiciled  in  a  particular  place  when  he  takes 
up  residence  there  with  an  intention  to  remain  for  an  indefinite 
time  (animo  manendi).  When  so  domiciled,  all  matters  other 
than  political,  which  relate  to  his  personal  status,  are  regulated 
by  the  lex  domicilii.  Thus  the  local  law  governs  his  power  to 
enter  into  contract?,  regulates  succession  to  personal  property,  and 
the  validity  of  wills  with  reference  thereto,  and,  in  the  United 
States,  England,  and  many  of  her  dependencies,  determines  the 
validity  of  marriages.  In  France,  and  some  other  countries,  how- 
ever, this  fast  subject  is  held  regulated  by  the  individual's  national 
law  wherever  he  may  he  domiciled.  Thus,  while  the  marriage  in 
the  United  States  of  a  Frenchman  domiciled  in  the  United  States 
is  held  valid  by  the  United  States  law  if  its  provisions  governing 
marriages  are  satisfied,  it  would  not  be  held  valid  in  France,  un- 

-  the  requirements  of  the  French  law  were  also  satisfied. 

Domicile  is  immediately  fixed  when  residence  is  taken  up  with 
the  intent  to  remain  for  an  indefinite  length  of  time.  Thus,  for 
example,  in  17^1  when  the  English  captured  from  the  Dutch  the 
island  of  St  Euatatius,  a  native-born  English  citizen  who  had 
arrived  at  the  island  but  a  few  hours  before  with  the  intention  of 
residing  there  for  an  indefinite  length  of  time,  was  held  to  be 
domiciled  there  and  his  *ty  subject  to  the  same  liabilities 

as  those  of  the  other  residents  of  the  place.     The  same  doctrine 


250  United  States  Constitutional  Law. 

was  applied  by  the  Supreme  Court  of  the  United  States  in  the 
case  of  The  Venus.6  In  this  case  with  reference  to  the  status  of 
such  a  domiciled  alien  in  time  of  war  the  court  said :  "  The  next 
question  is,  what  are  the  consequences  to  which  this  acquired 
domicile  may  legally  expose  the  person  entitled  to  it,  in  the  event 
of  a  war  taking  place  between  the  government  under  which  he 
resides  and  that  to  which  he  owes  a  permanent  allegiance?  A 
neutral  in  his  situation,  if  he  should  engage  in  open  hostilities 
with  the  other  belligerent,  would  be  considered  and  treated  as  an 
enemy.  A  citizen  of  the  other  belligerent  could  not  be  so  con- 
sidered, because  he  could  not,  by  any  act  of  hostility,  render  him- 
self, strictly  speaking,  an  enemy,  in  the  strict  sense  of  the  word, 
yet  he  is  deemed  such  with  reference  to  the  seizure  of  so  much 
of  his  property  concerned  in  the  trade  of  the  enemy,  as  is  con- 
nected with  his  residence.  It  is  found  adhering  to  the  enemy. 
He  is  himself  adhering  to  the  enemy,  although  not  criminally  so, 
unless  he  engages  in  acts  of  hostility  against  his  native  country, 
or,  probably  refuses,  when  required  by  his  country,  to  return.  The 
same  rule  as  to  property  engaged  in  the  commerce  of  the  enemy 
applies  to  neutrals;  and  for  the  same  reason.  The  converse  of 
this  rule  inevitably  applies  to  the  subject  of  a  belligerent  State 
domiciled  in  a  neutral  country;  he  is  deemed  a  neutral  by  both 
belligerents,  with  reference  to  the  trade  which  he  carries  on  with 
the  adverse  belligerent,  and  with  all  the  rest  of  the  world. 

"But  this  national  character  which  a  man  acquires  by  residence, 
may  be  thrown  off  at  pleasure,  by  a  return  to  his  native  country, 
or  even  by  turning  his  back  on  the  country  in  which  he  resided, 
on  his  way  to  another.  To  use  the  language  of  Sir  W.  Scott,  it 
is  an  adventitious  character  gained  by  residence  and  which  ceases 
by  non-residence.  It  no  longer  adheres  to  the  party  from  the 
moment  he  puts  himself  in  motion,  bona  fide,  to  quit  the  country 
sine  animo  revertendi." 

§  123.  Aliens  not  Domiciled. 

An  alien  passing  through  the  United  States,  or  for  any  purpose 
only  temporarily  in  the  country,  is  held  fully  subject  to  local 

6  8  Cr.  253  j  3  L.  ed.  553. 


Persons  Subject  to  Jurisdiction  of  United  States.     251 

criminal  law.  He  is  also  able  to  enter  into  civil  contracts  which 
may  be  enforced  against  him  to  the  extent  of  any  property  that 
he  may  have  within  the  United  States. 

§  124.  Exclusion  and  Expulsion  of  Aliens. 

All  countries  have,  according  to  the  principles  of  international 
law,  the  right  to  determine  for  themselves  whether  or  not  they 
will  admit  aliens  within  their  borders,  or  whether  they  will  admit 
some  and  not  others.  Furthermore,  after  admission,  aliens, 
whether  domiciled  or  not,  may  remain  only  so  long  as  the  State 
where  they  are  sees  fit  to  permit  them  to  do  so.  These  rights 
exercised  arbitrarily,  oppressively,  or  opprobriously  may  give  rise 
to  just  grounds  of  complaint  upon  the  part  of  States  whose  sub- 
jects are  thereby  injured  or  discriminated  against  But  the  ex- 
istence of  the  right  of  an  independent  State  to  determine  for  itself 
whom  it  will  receive  or  allow  to  remain  within  its  borders,  cannot 
be  questioned. 

§  125.  The  Chinese. 

The  right  of  the  United  States,  from  both  the  international  and 
constitutional  viewpoints,  to  prohibit  entrance  within  its  borders 
to  such  aliens  as  it  may  deem  undesirable  additions  to  its  popu- 
lation, has  been  examined  and  upheld  in  numerous  cases,  most  of 
them  dealing  with  the  exclusion  of  the  Chinese. 

In  the  Chinese  Exclusion  Case,7  decided  in  1887,  the  Supreme 
Court  said :  "  To  preserve  its  independence,  and  give  security 
against  foreign  aggression  and  encroachment,  is  the  highest  duty 
of  every  nation,  and  to  attain  these  ends  nearly  all  other  considera- 
tions are  to  be  subordinated.  It  matters  not  in  what  form  such 
aggression  and  encroachment  come,  whether  from  the  foreign 
nation  acting  in  its  national  character,  or  from  vast  hordes  of  its 
people  crowding  in  upon  us.  The  government,  possessing  the 
powers  which  are  to  be  exercised  for  protection  and  security,  is 
clothed  with  authority  to  determine  the  occasion  on  which  the 
powers  shall  be  called  forth;  and  its  determination,  so  far  as  the 

i  Sub  nom.  Chae  Chan  Ping  v.  United  States,  130  U.  S.  581;  9  Sup.  Ct 
Rep.  623;  32  L.  ed.  1068. 


252  United  States  Constitutional  Law. 

subjects  affected  are  concerned,  are  necessarily  conclusive  upon 
all  its  departments  and  officers.  If,  therefore,  the  government  of 
the  United  States,  through  its  legislative  department,  considers 
the  presence  of  foreigners  of  a  different  race  in  this  country,  who 
will  not  assimilate  with  us,  to  be  dangerous  to  its  peace  and  se- 
curity, their  exclusion  is  not  to  be  stayed  because  at  the  time  there 
are  no  actual  hostilities  with  the  nation  of  which  the  foreigners 
are  subjects.  The  existence  of  war  would  render  the  necessity  of 
the  proceeding  more  obvious  and  pressing.  The  same  necessity, 
in  a  less  pressing  degree,  may  arise  when  war  does  not  exist,  and 
the  same  authority  which  adjudges  the  necessity  in  one  case  must 
also  determine  it  in  the  other.  In  both  cases,  its  determination 
is  conclusive  upon  the  judiciary.  If  the  government  of  the  country 
of  which  the  foreigners  excluded  are  subjects  is  dissatisfied  with 
this  action,  it  can  make  complaint  to  the  executive  head  of  our 
government,  or  resort  to  any  other  measure  which,  in  its  judg- 
ment, its  interest  or  dignity  may  demand;  and  there  lies  its  only 
remedy." 

In  this  case  the  court  held  that  so  essential  to  a  State  is  this 
right  of  excluding  undesired  aliens,  the  State  may  not  be  pre- 
vented, even  by  treaty,  from  exercising  it  at  its  own  discretion. 
Thus,  in  holding  valid  an  act  of  Congress  the  terms  of  which  were 
in  violation  of  a  treaty  previously  entered  into  by  this  country 
with  China,  the  court  said :  "  The  power  of  exclusion  of  foreign- 
ers being  an  incident  of  sovereignty  belonging  to  the  government 
of  the  United  States,  as  a  part  of  those  sovereign  powers  dele- 
gated by  the  Constitution,  the  right  to  its  exercise  at  any  time 
when,  in  the  judgment  of  the  government,  the  interests  of  the 
country  require  it,  cannot  be  granted  away  or  restrained  on  be- 
half of  anyone.  The  powers  of  government  are  delegated  in  trust 
to  the  United  States,  and  are  incapable  of  transfer  to  any  other 
parties.  They  cannot  be  abandoned  or  surrendered.  Xor  can 
their  exercise  be  hampered,  when  needed  for  the  public  good,  by 
any  considerations  of  private  interest.  The  exercise  of  these  pub- 
lic trusts  is  not  the  subject  of  barter  or  contract.  Whatever 
license,  therefore,  Chinese  laborers  may  have  obtained  previous 


Persons  Subject  to  Jukisdictiox  of.  United  States.     253 

to  the  act  of  October  1,  188S,  to  return  to  the  United  States 
after  their  departure,  is  held  at  the  will  of  the  government,  rev- 
ocable at  any  time,  at  its  pleasure.  Whether  a  proper  considera- 
tion by  our  government  of  its  previous  laws,  or  a  proper  respect 
for  the  nation  whose  subjects  are  affected  by  its  action,  ought  to 
have  qualified  its  inhibition  and  made  it  applicable  only  to  per- 
sons departing  from  the  country  after  the  passage  of  the  act.  are 
not  questions  for  judicial  determination.  If  there  be  any  just 
ground  for  complaint  on  the  part  of  China,  it  must  be  made  to 
the  political  department  of  our  government,  which  is  alone  com- 
petent to  act  upon  the  subject." 

This  power  of  exclusion,  as  the  Supreme  Court  has,  in  a  line 
of  cases,  held,  may  be  exercised  through  executive  officers  without 
judicial  intervention.8 

As  we  have  seen  from  the  foregoing  quotations,  the  same  prin- 
ciples that  support,  constitutionally,  the  right  of  the  United  States 
to  exclude  aliens,  support  the  right  to  expel  them  when  occasion 
demands.  Bonflls  states  the  international  doctrine  as  follows: 
'"A  State  has  the  right  to  expel  from  its  territory  aliens,  individu- 
ally or  collectively,  unless  treaty  provisions  stand  in  the  way. 
.  .  .  In  ancient  times,  collective  expulsion  was  much  practised. 
In  modern  times  it  has  been  resorted  to  only  in  case  of  war.  Some 
writers  have  essayed  to  enumerate  the  legitimate  causes  of  ex- 
pulsion. The  effort  is  useless.  The  reasons  may  be  summed  up 
and  condensed  in  a  single  word:  The  public  interests  of  the  State. 
Bluntschli  wished  to  deny  the  States  the  right  of  expulsion,  but 
he  was  obliged  to  acknowledge  that  aliens  might  be  expelled  by  a 
single  administrative  measure.  (French  law  of  December  2, 
18-tii.  arts.  7  &  8  —  Law  of  Ot.  19.  1797,  art.  7.)  An  arbitrary 
expulsion  may  nevertheless  give  rise  to  a  diplomatic  claim."9 

8  Ekiu  v.  United  states.  142  I*.  S.  661 ;  12  Sup.  Ct.  Rep.  336:  35  L.  ed.  1140: 
Fong  rue  Ting  v.  United  States,  149  U.  S.  698;  13  Sup.  Ct.  Rep.  1016:  37 
L.  ed.  905;  Leni  Moon  Sin«  v.  United  States,  156  U.  B.  538;  15  Sup.  Ct.  Ken. 
967;  39  L.  ed.  1082;  Turner  v.  Williams.  194  0.  9.  279:  24  Sup.  Ct.  Rep.  71!': 
4S  L.  ed.  979:  United  States  v.  Jn  Toy,  198  t".  S.  253:  25  Sup.  Ct.  Rep.  844; 
4!'  L.  .■•!.  1040:  Chin  Low  v.  United  Stat-.  298  U.  S.  8;  28  Sup.  Ct.  Rep. 
201  :  52  L.  ed.  369. 

Ufamfd  (hi  Droit  International  Public.  442:  Moore,  Digest  of  International 
Law,  §  550. 


254  United  States  Constitutional  Law. 

§  126.  Protection  of  the  Persons  and  Property  of  Aliens. 

Aliens  are,  by  the  general  doctrines  of  public  law,  entitled  to 
the  same  protection  of  person  and  property  as  that  enjoyed  by  the 
citizens  of  the  State  in  which  they  are  resident.  In  all  cases,, 
when  injured,  the  same  means  of  redress  as  are  open  to  citizens 
should  be  given  them.  But  they  are,  of  international  right,  en- 
titled to  no  special  privileges  in  these  respects.10 

In  a  number  of  cases  the  United  States^Government  has  been 
called  upon  by  foreign  governments  to  furnish  pecuniary  and 
other  redress  to  resident  aliens  who  have  been  illegally  killed, 
injured,  or  their  property  destroyed.  These  claims  have  in  prac- 
tically all  cases  arisen  out  of  injuries  received  at  the  hands  of 
mobs  moved  by  feelings  of  animosity  against  the  injured  because 
of  their  race.  Thus  claims  of  this  sort  were  advanced  after  the 
New  Orleans  Spanish  Riots  of  1851,  the  Denver  Chinese  Riot  _in 
1880,  the  Chinese  Riot  in  1885  at  Rock  Springs  in  the  Territory 
of  Wyoming,  the  Chinese  Riot  at  Seattle  in  the  same  year,  and 
the  lynching  of  certain  Italians  at  New  Orleans  in  1891. 

In  a  number  of  cases  the  United. States,  ex  gratia,  has  paid  in- 
demnities to  the  injured  or  to  their  families,  but  in  no  case  has 
acknowledged  that,  under  the  principles  of  international  law,  it 
was  obligated  to  do  so.  As  regards  the  punishment  of  those  who 
have  committed  the  assaults,  the  United  States  has  called  attention 
to  the  fact  that  this  is  a  matter  for  the  local  authorities  where  the 
assaults  occur.  Had,  of  course,  any  public  officials  of  the  United 
States  participated,  as  such,  in  the  assaults,  or  sanctioned  them, 
or,  had  the  United  States  refused  to  the  injured  aliens,  or  failed 
to  provide  them  with,  the  protection  which  was  accorded  to  Ameri- 
can citizens,  it  was  admitted  that  the  case  would  have  been  dif- 
ferent, and  international  responsibility  would  have  been  incurred. 

As  a  result  of  the  AleLeod  incident,  described  in  section 
69  of  this  treatise.  Congress  passed  the  next  year  an  act 
providing  that  the  Supreme  Court,  the  Circuit  Court,  and  the 
District  Courts  of  the  United  States  should  have  the  power  to 

io  See  Moore,  Digest  of  International  Law,  IV,  534,  and  authorities  there 
cited. 


Persons  Subject  to  Jurisdiction  of  United  States.     255 

issue  writs  of  habeas  corpus  "  in  all  cases  of  any  prisoner  or 
prisoners  in  jail  or  confinement,  where  he,  she,  or  they  being  sub- 
jects or  citizens  of  a  foreign  State  and  domiciled  therein,  shall  be 
committed  or  confined,  or  in  custody,  under  or  by  any  authority 
of  law,  or  process  founded  thereon,  of  the  United  States,  or  of 
any  of  them,  for  or  on  account  of  any  act  done  or  omitted  under 
any  alleged  right,  title,  authority,  privilege,  protection,  or  exemp- 
tion, set  up  or  claimed  under  the  commission  or  order  or  sanction 
of  any  foreign  State  or  Sovereignty,  the  validity  and  effect 
whereof  depend  upon  the  law  of  nations,  or  under  color  thereof.".11 

The  constitutionality  of  this  act  can  scarcely  be  questioned. 
In  so  far  as  the  United  States  admits,  and  properly  admits,  itself 
to  be  responsible  to  foreign  States,  it  has  undoubtedly  an  implied 
constitutional  power  to  extend  its  judicial  power  sufficiently  to 
enable  it  to  discharge  the  obligations  which  its  international  rela- 
tions may  impose  ugpon  it. 

It  will  be  observed  that  under  the  statutory  authority  conferred 
by  Section  753  the  federal  court  may,  by  writs  of  habeas  corpus, 
obtain  possession  of,  and  release  persons  situated  as  was  McLeod. 
But  it  does  not  give  to  the  federal  courts  the  power  to  prevent, 
or  secure  the  punishment  of  persons  committing,  acts  of  violence 
or  other  illegal  acts  within  the  States  upon  aliens.  That  they 
should  be  given  this  authority  because,  by  such  acts,  the  United 
States  may  become  responsible  to  foreign  powers  has  been  several 
times  suggested  in  presidential  communications  to  Congress,  and 

u  Stat,  at  L.  v.  539.  At  present,  as  stated  in  the  Revised  Statutes 
(Sec.  753)  the  power  of  the  federal  courts  to  issue  writs  of  habeas  corpus  is  as 
follows:  "Sec.  753.  The  writ  of  habeas  corpus  shall  in  no  case  extend  to 
a  prisoner  in  jail,  unless  where  he  is  in  custody  under  or  by  color  of 
the  authority  of  the  United  States,  or  is  committed  for  trial  before  some 
court  thereof;  or  is  in  custody  for  an  act  done  or  omitted  in  pursuance 
of  a  law  of  the  United  States,  or  of  an  order,  process,  or  decree  of  a  court 
or  judge  thereof;  or  is  in  custody  in  violation  of  the  Constitution  or  of  a  law 
or  treaty  of  the  United  States;  or,  being  a  subject  or  citizen  of  a  foreign 
State,  and  domiciled  therein,  is  in  custody  for  an  act  done  or  omitted,  under 
any  alleged  right,  title,  authority,  privilege,  protection,  or  exemption,  claimed 
under  t lie  commission,  or  order,  or  sanction  of  any  foreign  State,  or  under 
color  thereof,  the  validity  and  effect  whereof  depend  upon  the  law  of  nations; 
or   unless   it    is   necessary   to    bring   the    prisoner   into   court   to   testify." 


256  United  States  Constitutional  Law. 

bills  providing  this  have  been  introduced  in  that  body  but  never 
as  yet  enacted  into  law.  President  Harrison  in  his  annual  mes- 
sage of  December,  18 91,  referring  to  the  lynching  of  the  Italians 
at  Xew  Orleans,  said:  "Some  suggestions  growing  out  of  this 
unhappy  incident  are  worthy  the  attention  of  Congress.  It  would, 
I  believe,  be  entirely  competent  for  Congress  to  make  offenses 
against  the  treaty  rights  of  foreigners  domiciled  in  the  United 
States  cognizable  in  federal  courts.  This  has  not,  however,  been 
done,  and  the  federal  officers  and  courts  have  no  power  in  such 
cases  to  intervene  either  for  the  protection  of  a  foreign  citizen  or 
for  the  punishment  of  his  slayers.  It  seems  to  me  to  follow,  in 
this  state  of  the  law,  that  the  officers  of  the  State  charged  with 
police  and  judicial  powers  in  such  cases  must,  in  the  considera- 
tion of  international  questions  growing  out  of  such  incidents,  be 
regarded  in  such  sense  as  federal  agents  as  to  make  this  govern- 
ment answerable  for  their  acts  in  cases  where#it  would  be  answer- 
able if  the  United  States  had  used  its  constitutional  power  to 
define  and  punish  crimes  against  treaty  rights." 

A  bill  carrying  out  the  suggestion  here  made  was  introduced 
into  Congress  but  not  enacted  into  law,  and  from  time  to  time 
since  then  substantially  similar  measures  have  been  urged  upon 
Congress  in  presidential  messages,  and  have  been  introduced  and 
debated  but  without  result.  The  matter  has  also  been  debated  by 
the  American  Bar  Association  and  the  American  Society  of  Inter- 
national Law.  The  constitutionality  of  a  law  giving  this  addi- 
tional jurisdiction  to  the  federal  courts  has  been  questioned,  but, 
it  would  seem,  not  with  good  reason.  A  decision  of  the  Supreme 
Court  that  would  seem  to  sanction  such  legislation  is  that  of 
united  States  v.  Arjona.12  Arjona,  the  defendant,  was  indicted 
under  an  act  of  Congress  of  1884  providing  for  the  punishment 
of  persons  counterfeiting,  the  securities  of  foreign  government-. 
Upon  the  constitutionality  of  this  act  being  questioned  upon  the 
ground  that,  though  the  United  States  had  the  implied  right  to 
declare  criminal  the  counterfeiting  of  its  own  bonds*  and  notes,  it 
had  not  the  power  thus  to  protect  those  of  the  other  powers,  the 

12  120  U.  S.  479;  7  Slip.  Ct.  Rep.  G28;  SO  L.  ed.  728. 


Persons  Subject  to  Jurisdiction  of  United  States.     257 

Supreme  Court,  in  its  opinion,  say:  "  The  ^National  Government 
is  .  .  .  made  responsible  to  foreign  nations  for  all  violations 
by  the  United  States  of  their  international  obligations,  and  be- 
cause of  this  Congress  is  expressly  authorized  to  '  define  and 
punish  .  .  .  offenses  against  the  law  -of  nations.'  .  .  .  Con- 
sequently a  law  which  is  necessary  and  proper  to  afford  this  pro- 
tection is  one  that  Congress  may  enact  because  it  is  one  needed  to 
carry  into  execution  a  power  conferred  by  the  Constitution  on 
the  Government  of  the  United  States  exclusively.  There  is  no 
authority  in  the  United  States  to  require  the  passage  and  enforce- 
ment of  such  a  law  by  the  States.  Therefore,  the  United  States 
must  have  the  power  to  pass  it  and  enforce  it  themselves,  or  be 
unable  to  perform  a  duty  which  they  may  owe  to  another  nation 
and  which  the  law  of  nations  has  imposed  upon  them  as  part  of 
the  international  obligations.  This,  however,  does  not  prevent  a 
State  from  providing  for  the  punishment  of  the  same  thing,  for 
here,  as  in  the  ease  of  counterfeiting  the  coin  of  the  United  States, 
the  act  may  be  an  offense  against  the  authority  of  a  State,  as  well 
as  that  of  the  United  States."13 

13  Of.  on  this  whole  subject  the  essay  by  J.  I.  Chamberlain,  The  Position 
of  the  Federal  Government  of  the  United  States  in  Renrtrd  to  Crimes  Com- 
mitted against  the  Subjects  of  a  Foreign  X  at  ion  Within  the  States.  Also 
Reports  of  American  Bar  Association  for  1891,  1892,  1893;  Congressional 
Record.  52nd  Congress,  1st  Session.  1892;  Annual  Message  of  President, 
December.  1901,  and  Proceedings  of  the  American  Society  of  International 
Law,  1907. 

17 


CHAPTEE  XVII. 

AMERICAN  CITIZENSHIP. 

§  127.  Citizenship  Defined. 

From  the  consideration  of  the  status  of  aliens,  we  turn  to  an 
examination  of  the  status  of  citizens  or  subjects. 

The  citizen  or  subject  body  of  a  State,  regarded  from  the  view- 
point of  other  States,  that  is,  from  the  viewpoint  of  International 
Law,  constitutes  one  homogeneous  body,  all  the  members  of  which 
have  the  same  status,  the  same  rights  and  duties.  Considered, 
however,  from  the  viewpoint  of  the  constitutional  or  municipal 
law  of  the  State  in  question,  they  may  be  grouped  into  distinct 
classes,  with  differing  public  and  private  rights.  Thus  it  is  that 
in  the  constitutional  jurisprudence  of  the  United  States  we  have 
at  present  not  only  a  distinction  between  federal  and  state  citizen- 
ship, but,  within  the  class  of  federal  citizens,  as  including  all  those 
persons  subject  to  the  full  sovereignty  of  the  United  .States,  a 
distinction  between  those  Avho  are  "  citizens  of  the  United  States  " 
according  to  the  meaning  of  that  phrase  as  used  in  the  Constitu- 
tion of  the  United  States,  and  those  who,  though  subjects  of  the 
United  States,  are  not  citizens  within  this  narrower  constitutional 
sense. 

In  Minor  v.  Happersett,1  decided  in  1875,  the  definition  of 
citizenship,  its  essential  character,  and  the  privileges  necessarily 
attached  to  its  possession,  were  examined  in  passing  upon  the 
claim  made  that  a  woman,  as  a  citizen  of  the  United  States,  might 
not,  simply  because  of  her  sex,  be  denied  by  a  State  the  right  of 
suffrage.  In  denying  this  claim,  Chief  Justice  TVaite,  who  ren- 
dered the  unanimous  opinion  of  the  court,  declared :  "  There 
cannot  be  a  nation  without  a  people.  The  very  idea  of  a  political 
community,  such  as  a  nation  is,  implies  an  association  of  persons 
for  the  promotion  of  their  general  welfare.     Each  one  of  the  per- 

121  Wall.  162;  22  L.  ed.  627. 

[258] 


American  Citizenship.  259 

sons  associated  becomes  a  member  of  the  nation  formed  by  the 
association.  He  owes  it  allegiance  and  is  entitled  to  its  protection. 
Allegiance  and  protection  are,  in  this  connection,  reciprocal  obliga- 
tions. The  one  is  a  compensation  for  the  other;  allegiance  for  pro- 
tection and  protection  for  allegiance.  For  convenience  it  has  been 
found  necessary  to  give  a  name  to  this  membership.  The  object  is 
to  designate  by  a  title  the  person  and  the  relation  he  bears  to  the 
nation.  For  this  purpose  the  words  '  subject/  '  inhabitant,'  and 
'  citizen  '  have  been  used,  and  the  choice  between  them  is  some- 
times made  to  depend  upon  the  form  of  the  government.  Citizen 
is  now  more  commonly  employed,  however,  and  as  it  has  been  con- 
sidered better  suited  to  the  description  of  one  living  under  a  re- 
publican government,  it  was  adopted  by  nearly  all  of  the  States 
upon  their  separation  from  Great  Britain,  and  was  afterward 
adopted  in  the  Articles  of  Confederation  and  in  the  Constitution 
of  the  United  .States.  When  used  in  this  sense  it  is  understood  as 
conveying  the  idea  of  membership  of  a  nation,  and  nothing 
more."2 

2  See,  holding  that  the  elective  franchise  is  not  a  necessary  incident  of 
citizenship:  1.  As  to  negroes  —  Smith  v.  Moody,  1866  (26  Ind.  299); 
United  States  v.  Crosby,  1871  (1  Hughes,  448)  ;  Anthony  v.  Holderman,  1871 
(7  Kans.  50)  ;  Van  Valkenburg  v.  Brown,  1872  (43  Cal.  42)  ;  United  States 
v.  St.  Petersburg  (3  Hughes,  493)  ;  United  States  v.  Reese,  1875  (92  U.  S. 
214;    23    L.    ed.   563);    and   see   Opinions   of  Justices,    1857    (44    Me.    507). 

2.  As  to  women  —  Spencer  v.  Board,  1873  (8  D.  C.  169);  United  States  v. 
Anthony,  1873  (11  Blatchf.  200);  Minor  v.  Happersett,  1874  (21  Wall.  162; 
22  L.  ed.  627);  Dorsey  v.  Brigham  (177  111.  250);  Gougar  v.  Timberlake, 
189G  (148  Ind.  38);  and  see  also  People  v.  Oldtown,  1878  (88  111.  202); 
also  Ware  v.   Wisner,   1883    (50  Fed.  310)    holding  that  women  are  citizens. 

3.  As  to  minors  —  Lyons  v.  Cunningham,  1884  (66  Cal.  42)  ;  and  see  People 
v.  Oldtown,  supra.  4.  As  to  Indians,  holding  that  though  they  may  have 
voted,  this  did  not  make  them  citizens  —  Laurent  v.  State,  1863  (1  Kans.  313). 
5.  As  to  aliens  —  Spragins  v.  Houghton,  1840  (2  Scam.  3  111.  377); 
In  re  Wehlitz,  1«(53  (16  Wlfc  443):  United  States  v.  Hirschfield,  1876  (13 
Blatchf.  330  i  :  Lanz  v.  Randall,  1876  (4  Dill.  425)  ;  City  of  Minneapolis  v. 
Reum,  1893  (56  Fed.  576).  An  averment  in  pleading  that  one  was  "a 
citizen  and  resident  "  was  held  not  equivalent  to  a  «pecific  charge  that  he 
was  an  "  elector  "  —  Blanck  v.  Pausch,  1885  (113  111.  60).  That  the  elective 
franchise  is  not  a  right  of  citizenship  is  shown  also  by  the  fact  that  the 
courts  have  repeatedly  sustained  legislation  which  provides  for  a  certain  prior 
residence  before  voting  in  the  county,  town,  and  precinct.     See  Anthony  v. 


260  United  States  Constitutional  Law. 

§  128.  State  and  Federal  Citizenship  Distinguished. 

As  adopted,  the  federal  Constitution  contained  no  definition  of 
citizenship.  Impliedly,  however,  it  recognized  a  state  citizenship 
in  that  clause  which  provides  that  "  citizens  of  each  State  shall 
be  entitled  to  all  the  privileges  and  immunities  of  citizens  in  the 
several  States."  It  would  also  seem  to  have  recognized  a  federal 
citizenship  in  the  clauses  providing  that  the  President  shall  be 
"  a  natural  born  citizen,  or  a  citizen  of  the  United  States  at  the 
time  of  the  adoption  of  the  Constitution;"  that  Senators  and  Rep- 
resentatives shall  have  been  nine  and  seven  years  respectively 
citizens  "  of  the  United  States;"  and  that  Congress  shall  have  the 
power  to  pass  laws  regulating  the  naturalization  of  aliens. 

The  relationship  between  these  two  citizenships,  state  and  na- 
tional, however,  the  Constitution  did  not  expressly  determine. 

There  has  never  been  any  question  as  to  the  existence  under 
the  Constitution  of  a  distinction  between  state  and  federal  citi- 
zenship.3   The  only  dispute  has  been  as  to  the  relation  of  the  two. 

Prior  to  the  argument  of  the  Dred  Scott  case  there  was  sur- 
prisingly little  discussion  of  this  point.  The  opinion  generally 
held  seems,  however,  to  have  been  that  every  citizen  of  a  State  was 
a  citizen  of  the  United  States.  This  was  the  view  declared  by 
Rawle  in  his  work  on  the  Constitution  and  by  Story  in  his  Com- 
mentaries. Story  says :  "  Every  citizen  of  a  State  is  ipso  facto 
a  citizen  of  the  United  States."4  But  it  would  appear  that 
Story  did  not  hold  that  the  federal  citizen  body  is  made  up  ex- 
clusively of  state  citizens,  for  in  the  next  section  he  adds :     " And 

Holderman,  1871  (7  Kans.  50).  And  for  the  imposition  of  other  require- 
ments for  voting  see  Anderson  v.  Baker.  1865  (23  Md.  531)  ;  People  v.  De 
La  Guerra,  1870   (40  Cal.  311). 

This  note  is  taken  from  the  Report  on  Citizenship,  1906.  H.  R.  Doc.  No.  326, 
59th  Cong.,  2d  Session,  p.  46. 

3  See,  for  instance,  the  early  case  of  Talbot  v.  Janson  (3  Dall.  133 1,  decided 
in  1795,  in  which  the  renunciation  of  state  citizenship,  for  which  provision 
■was  made  by  the  state  Constitution,  was  held  not  to  operate  as  a  renuncia- 
tion of  allegiance  to  the  United  States.  Of  course,  state  citizenship  may  be 
lost  by  residence  outside  of  the  State  without  national  citizenship  being 
affected.     (Prentiss  v.  Brennan,  2  Blatchf.  162.) 

<  §  1687. 


Ameeican  Citizenship.  261 

a  person  who  is  a  naturalized  citizen  of  the  United  States,  by  a 
like  residence  in  any  State  of  the  Union  becomes  ipso  facto  a 
citizen  of  that  State.  So  a  citizen  of  a  territory  of  the  Union  by 
a  like  residence  acquires  the  character  of  the  State  where  he 
resides."  In  support  of  this  last  statement,  Story  refers  to  the 
case  of  Gassies  v.  Ballon.5  In  that  case,  decided  in  1832,  it  was 
held  that  the  allegation  that  the  defendant  had  been  naturalized 
as  an  American  citizen  and  was  residing  in  Louisiana  was  equiva- 
lent to  an  averment  that  he  was  a  citizen  of  that  State.  "A  citi- 
zen of  the  United  States,"  Marshall  declared  without  argument, 
"  residing  in  any  State  of  the  Union,  is  a  citizen  of  that  State." 
From  the  foregoing  it  appears  that  it  was  held  that  there  was 
a  reciprocal  relationship  between  federal  and  state  citizenship. 
By  residence  in  a  State  a  federal  citizen  became  ipso  facto  a  citi- 
zen of  that  State ;  and  a  state  citizen  was  ipso  facto  a  federal  citi- 
zen. This  doctrine  did  not,  it  is  evident,  decide  the  question  as 
to  which  of  the  two  citizenships  Avas  the  more  fundamental. 
Calhoun  and  others  of  his  school  have,  by  some  writers,  been 
credited  with  the  doctrine  that  there  was  no  federal  citizenship 
apart  from  the  state  citizenship  —  that  one  could  become  a  fed- 
eral citizen  only  by  first  becoming  a  citizen  of  one  of  the  States.6 
Calhoun  did  not,  however,  take  exactly  this  position.  In  a  speech 
delivered  in  the  United  .States  Senate  in  1833  upon  the  then  pend- 
ing Force  Bill,  he  declared :  ''  If  by  a  citizen  of  the  United 
States  he  [Senator  Clayton]  means  a  citizen  at  large,  one  whose 
citizenship  extends  to  the  entire  geographical  limits  of  the  country 
without  having  a  local  citizenship  in  some  State  or  Territory,  a 
sort  of  citizen  of  the  world,  all  I  have  to  say  is  that  such  a  citizen 
would  be  a  perfect  nondescript ;  that  not  a  single  individual  of 
this  description  can  be  found  in  the  entire  mass  of  the  population. 
.  .  .  Every  citizen  is  a  citizen  of  some  State  or  Territory,  and 
as  such,  under  an  express  provision  of  the  Constitution,  is  entitled 
to  all  the  privileges  and  immunities  of  citizens  in  the  several 
States;  and  it  is  in  this  and  no  other  sense  that  we  are  citizens  of 
the  United  State-." 

6  6  Pet.  701  :  8  L.  ed.  578, 

6  For  example,  Bee  Bnmnon.  The  Fourteenth  AmouJmeyit,  p.   17. 


262  United  States  Constitutional  Law. 

From  this  it  will  be  seen  that  Calhoun  recognized  not  only  a 
state  citizenship  but  a  territorial  citizenship,  which  latter,  of 
course,  could  be  derived  only  from  a  federal  source.  AVhat  he 
and  others  of  the  States'  Rights  school  held  was  that  as  between 
state  citizenship  and  federal  citizenship,  the  former  was  the  more 
fundamental ;  that,  in  other  words,  the  latter,  except  as  to  citizens 
in  the  Territories,  was  derived  from  the  former.  The  fact  of  the 
federal  control  of  naturalization  Calhoun  explained  by  alleging 
that  that  power  was  one  which  enabled  Congress  simply  to  remove 
the  disabilities  of  foreign  birth,  the  several  States  being  left  free 
to  decide  whether  or  not,  when  such  disabilities  had  been  removed 
from  aliens  resident  within  their  borders,  they  should  be  accepted 
by  them  as  citizens. 

§  129.  The  Dred  Scott  Case. 

The  whole  question  of  the  relation  between  state  and  federal 
citizenship  came  up  for  discussion  and  decision  in  the  Dred  Scott 
case7  decided  in  1856.  Two  of  the  questions  involved  in  this 
case  were:  Whether  a  State  might  make  a  negro  one  of  its  citi- 
zens ;  and,  if  so,  whether  such  a  one  thereby  necessarily  became  a 
citizen  of  the  United  States  and  as  such  entitled  to  the  special 
privileges  and  immunities  created  by  the  Constitution,  among 
which  privileges  was  the  right  to  bring  a  suit  in  a  federal  court 
under  that  clause  of  the  Constitution  which  gives  to  the  federal 
judiciary  the  power  to  hear  and  determine  suits  between  "  citizens 
of  different  States." 

The  plaintiff  in  this  case  was  a  negro  of  African  descent,  whose 
ancestors  were  of  pure  African  blood,  and  who  had  been  brought 
into  this  country  and  sold  as  slaves.  The  plea  in  abatement  set 
up  that,  whether  free  or  not,  and  whether  by  the  laws  of  Missouri 
a  citizen  of  that  State  or  not,  Scott  was  not,  and  could  not  by  the 
action  of  a  State  be  made  a  u  citizen  "  in  the  strict  sense  of  that 
word  as  used  in  Article  III  of  the  Constitution.  In  sustaining 
this  plea,  Chief  Justice  Taney  in  his  opinion  said :  "  The  words 
'  people  of  the  United   States '   and   '  citizens '   are   synonymous 

1  Scott  v.  Sanford,  19  How.  393;  15  L.  ed.  691. 


American  Citizenship.  263 

terms,  and  mean  the  same  thing.  They  both  describe  the  political 
body  who,  according  to  our  republican  institutions,  form  the  sover- 
eignty, and  who  hold  the  power  and  conduct  the  government 
through  their  representatives.  They  are  what  we  familiarly  call 
the  '  sovereign  people/  and  every  citizen  is  one  of  this  people  and 
a  constituent  member  of  this  sovereignty.  The  question  before  us 
is,  whether  the  class  of  persons  described  in  the  plea  in  abatement 
compose  a  portion  of  this  people,  and  are  constituent  members 
of  this  sovereignty.  ...  In  discussing  this  question,  we  must 
not  confound  the  rights  of  citizenship  which  a  State  may  confer 
within  its  own  limits,  and  the  rights  of  citizenship  as  a  member 
of  the  Union.  It  does  not  by  any  means  follow,  because  he  has 
all  the  rights  and  privileges  of  a  citizen  of  a  State,  that  he  must 
be  a  citizen  of  the  United  States.  He  may  have  all  the  rights  and 
privileges  of  the  citizen  of  a  State,  and  yet  not  be  entitled  to  the 
rights  and  privileges  of  a  citizen  in  any  other  State.  For,  previous 
to  the  adoption  of  the  Constitution  of  the  United  States,  every 
State  had  the  undoubted  right  to  confer  on  whomsoever  it  pleased 
the  character  of  a  citizen,  and  to  endow  him  with  all  its  rights. 
But  this  character,  of  course,  was  confined  to  the  boundaries  of 
the  State,  and  gave  him  no  rights  or  privileges  in  other  States 
beyond  those  secured  to  him  by  the  laws  of  nations  and  the  comity 
of  States.  Xor  have  the  several  States  surrendered  the  power  of 
conferring  these  rights  and  privileges  by  adopting  the  Constitu- 
tion of  the  United  States.  Each  State  may  still  confer  them  upon 
an  alien,  or  anyone  it  thinks  proper,  or  upon  any  class  or  descrip- 
tion of  persons ;  yet  he  would  not  be  a  citizen  in  the  sense  in  which 
that  word  is  used  in  the  Constitution  of  the  United  States,  nor 
entitled  to  sue  as  such  in  one  of  its  courts,  nor  to  the  privileges 
and  immunities  of  a  citizen  in  the  other  States.  The  rights  which 
he  would  acquire  would  be  restricted  to  the  State  which  gave  them. 
The  Constitution  lias  conferred  on  Congress  the  right  to  establish 
an  uniform  rule  of  naturalization,  and  this  right  is  evidently  ex- 
clusive, and  has  always  been  held  by  this  court  to  be  so.  Conse- 
quently no  State,  since  the  adoption  of  the  Constitution,  can,  by 
naturalizing  an  alien,  invest  him  with  the  rights  and  privileges 


264  United  States  Constitutional  Law. 

secured  to  a  citizen  of  a  State  under  the  Federal  Government,  al- 
though, so  far  as  the  State  alone  was  concerned,  he  would  un- 
doubtedly be  entitled  to  the  rights  of  a  citizen,  and  clothed  with 
all  the  rights  and  immunities  which  the  Constitution  and  laws 
of  the  State  attached  to  that  character." 

There  was  no  dissent  on  the  part  of  any  of  the  Justices  of  the 
Supreme  Court  from  the  doctrine  declared  by  Taney  that  it  did 
not  lie  within  the  power  of  the  individual  States  to  create  federal 
citizens  by  admitting  whomsoever  they  should  see  fit  to  their  own 
citizenship.  Justice  Catron,  however,  argued  that,  under  the 
pleadings,  the  plea  in  abatement,  and,  therefore,  the  question  of 
citizenship,  was  not  properly  before  the  Supreme  Court,  and  Jus- 
tices McLean  and  Curtis  in  the  particular  case  at  bar  argued 
that  Scott  by  fact  of  birth  within  the  United  States  was  a  citizen 
of  the  ITnited  States,  and,  by  domicile,  was  a  citizen  of  the  State 
of  Missouri.  In  his  dissenting  opinion,  Justice  McLean  argued 
that  under  the  demurrer  which  was  filed  to  the  plea  in  abatement, 
Scott  was  to  be  considered  a  free  man,  and-  that, -as  such,  whether 
or  not  he  was  of  negro  descent  and  had  been  a  slave,  he  was  a 
citizen  of  the  United  States  and  of  the  State  in  which  he  was 
domiciled.  "  Being  born  under  our  Constitution  and  laws,"  he 
said,  "  no  naturalization  is  required,  as  one  of  foreign  birth,  to 
make  him  a  citizen.  The  most  general  and  appropriate  definition 
of  the  term  '  citizen '  is  a  '  freeman.'  Being  a  freeman,  and 
having  a  domicile  in  a  State  different  from  that  of  the  defendant, 
he  is  a  citizen  within  the  act  of  Congress,  and  the  courts  of  the 
L^nion  are  open  to  him." 

Justice  Curtis  in  his  dissenting  opinion,  after  declaring  the 
principle  that  the  Constitution  must  have  recognized  as  citizens 
of  the  United  States  all  those  who  were  recognized  by  the  States 
as  citizens  at  the  time  the  Constitution  was  adopted,  took  issue 
with  Chief  Justice  Taney  as  to  the  statement  that  in  1789  free 
negroes  were  nowhere  in  America  recognized  as  citizens.  At  that 
time,  he  alleged,  not  only  were  all  free  native-born  inhabitants  of 
New  Hampshire,  Massachusetts,  Xcw  York,  Xew  Jersey,  and 
Xorth  Carolina,  including  those  descended  from  African  slaves, 


Amekican   Citizenship.  265 

citizens  of  those  States,  but  free  negroes,  where  they  had  the  neces- 
sary qualifications,  possessed  the  franchise  of  electors  on  equal 
terms  with  other  citizens.  Hence,  he  declared,  when  the  Consti- 
tution was  adopted  these  became  citizens  of  the  United  States, 
and  of  course  remained  citizens  of  the  .States  in  which  they  were 
domiciled.  "I  can  find  nothing  in  the  Constitution,"  he  said, 
'  which,  proprio  vigore,  deprives  of  their  citizenship  any  class  of 
persona  who  were  citizens  of  the  United  States  at  the  time  of  its 
adoption,  or  who  should  be  native-born  citizens  of  any  State  after 
its  adoption;  nor  any  power  enabling  Congress  to  disfranchise 
persona  born  on  the  soil  of  any  iState,  and  entitled  to  citizenship 
of  Buefa  State  by  its  Constitution  and  laws.  And  my  opinion  is, 
that  under  the  Constitution  of  the  United  States,  every  free  per- 
son born  on  the  soil  of  a  State,  who  is  a  citizen  of  that  State  by 
force  of  its  Constitution  or  laws,  is  also  a  citizen  of  the  United 


•  In  an  able  article,  entitled  "Emancipation  and  Citizenship"  in  the  Yale 
Laic  Journal,  XV,  203  (April,  1906),  Mr.  Gordon  E.  Sherman  shows  con- 
clusively the  fact  that  during  the  period  from  1775  to  1789  free  negroes 
wtro  very  generally  held  to  be  citizens  of  the  colonies  or  States  in  which 
they  lived,  but  that  there  soon  began  in  some  commonwealths  a  desire  to 
banish  the  freedmen  from  their  borders,  to  prohibit  their  entrance  from  other 
States,  and  to  deny  the  privileges  and  status  of  citizenship  to  such  as 
remained  within  their  several  jurisdictions.  The  historical  data  supplied  by 
this  article  fully  demonstrate  the  incorrectness  of  Taney's  assertion  that, 
at  the  time  the  Constitution  was  adopted,  the  free  negro  was  nowhere  re- 
garded as  a  citizen  or  as  qualified  for  citizenship.  Furthermore,  there  had 
been,  prior  to  the  Dred  Scott  case,  several  decisions  of  state  courts  in 
which  free  negroes  had  been  held  to  be  citizens.  Thus,  for  example,  in  State 
v.  Manuel  (3  Dew  &  Bat.  20),  decided  in  1835,  the  court  said:  "According 
to  the  laws  of  this  State  all  human  beings  within  it  who  are  not  slaves  fall 
witiiin  one  or  two  classes.  Whatever  distinctions  may  have  existed  in  the 
Roman  law  between  citizens  and  free  inhabitants^  they  are  unknown  to  our 
institutions.  Before  our  Revolution  all  free  persons  born  within  the  dominions 
of  the  King  of  Great  Britain,  whatever  their  color  or  complexion,  were  native 
horn  British  subjects;  those  born  out  of  his  allegiance  were  aliens.  Slavery 
did  not  exist  in  England,  but  it  did  exist  in  the  British  colonies.  81 
were  not,  in  legal  parlance,  persons,  but  property.  The  moment  the  in- 
capacity—  or  disqualification  of  color  —  was  removed  they  became  persons, 
and  were  then  cither  British  subjects,  according  as  they  were  or  were  not 
born  within  the  allegiance  of  the  British  King.  Cpon  the  Revolution  no 
other  change  took  place  in   the  law  of  North   Carolina  than   was  consequent 


266  United  States  Constitutional  Law. 

It  will  be  noticed  that  Curtis,  in  his  opinion,  makes  federal 
citizenship  dependent  on  state  citizenship  —  that  everyone  who  is 
by  the  Constitution  or  laws  of  a  State  a  citizen  thereof,  is 
ipso  facto,  a  federal  citizen,  and  that,  indeed,  the  General  Govern- 
ment is  without  the  powe;  to  deny  its  citizenship  to  those  thus 
created  state  citizens  by  state  law.     This  he  states  still  more  ex- 

upon  the  transition  from  a  colony  dependent  on  an  European  king  to  a  free 
and  sovereign  State.  Slaves  remained  slaves.  British  subjects  in  Xorth 
Carolina  became  North  Carolina  freemen.  Foreigners,  until  made  members 
of  the  State,  continued  aliens.  Slaves  manumitted  here  became  freemen; 
and,  therefore,  if  born  within  North  Carolina  are  citizens  of  North  Carolina, 
and  all  free  persons  born  within  the  State  are  born  citizens  of  the  State. 
A  few  only  of  the  principal  objections  which  have  been  urged  against  this 
view  of  what  we  considered  the  legal  doctrine  will  be  noticed.  It  has  been  said 
that  by  the  Constitution  of  the  United  States  the  power  of  naturalization 
has  been  conferred  exclusively  upon  Congress,  and  therefore  it  cannot  be 
competent  for  any  State  by  its  municipal  regulations  to  a  make  a  citizen. 
But  what  is  naturalization?  It  is  the  removal  of  the  disabilities  of  alienage. 
Emancipation  is  the  removal  of  the  incapacity  of  slavery.  The  latter  depends 
wholly  upon  the  internal  regulations  of  the  State;  the  former  belongs  to 
the  Government  of  the  United  States.  It  would  be  a  dangerous  mistake 
to  confound  them." 

The  court  then  goes  on  to  show  that  the  state  Constitution  gave  the  fran- 
chise to  every  adult,  without  regard  to  color,  who  had  paid  a  public  tax. 
For  cases  holding  that  the  free  negro  was  not  a  citizen,  see  Amy  v.  Smith 
(1  Litt.  [Ky.]  326),  decided  in  1822;  Crandall  v.  State  (10  Conn.  339),  de- 
cided in  1834;  State  v.  Claiborne  (1  Meigs  [Tenn.]  331),  decided  in  1838; 
Pendleton  v.  State  (6  Ark.  509),  decided  in  1846;  Cooper  v.  Mayor  (4  Ga. 
68),  decided  in  1848.  In  the  first  of  these  cases  the  court  said:  "Prior  to 
the  adoption  of  the  federal  Constitution  the  States  had  a  right  of  making 
citizens  of  any  persons  they  pleased,  but  as  the  Constitution  does  not  au- 
thorize any  but  white  persons  to  become  citizens  of  the  United  States  it 
furnishes  a  presumption  that  none  others  were  citizens  at  the  time  of  its 
adoption." 

In  Pendleton  v.  State^the  judge  declared:  "If  citizens  in  a  full  and  con- 
stitutional sense,  why  were^hey  not  permitted  to  participate  in  its  formation? 
They  certainly  were  not.  The  Constitution  was  the  work  of  the  white  race; 
the  Government,  for  which  it  provides,  and  of  which  it  is  the  fundamental 
law,  is  in  their  hands  and  under  their  control ;  and  it  could  not  have  been 
intended  to  place  a  different  race  of  people  in  all  things  upon  terms  of 
equality  with  themselves.  Indeed,  if  such  had  been  the  desire,  its  utter  im- 
practicability is  too  evident  to  admit  of  doubt.  The  two  races,  differing  as 
they  do  in  complexion,  habits,  conformation,  and  intellectual  endowments, 
could  not,  nor  ever  will  live  together  upon  terms  of  social  or  political  equality. 
A  higher  than  human  power  has  so  ordered  it,  and  a  greater  than  human 


American  Citizenship.  267 

plicitly  a  little  later  on.  The  only  power  granted  to  Congress  with 
reference  to  the  subject,  he  says,  is  that  of  naturalization,  and  this 
extends  only  to  the  removal  of  the  disabilities  of  foreign  birth. 
These  disabilities  removed,  it  is  left,  he  declares,  with  the  States 
individually  to  determine  whether  or  not  the  persons  thus  relieved 
of  such  disabilities,  are  to  be  admitted  to  state  citizenship  and 
thereby  to  federal  citizenship.  Even  as  to  native-born  free  white 
persons  it  is  left  to  the  States  to  determine  whether  or  not  they 
shall  be  recognized  as  citizens.  In  his  opinion,  Curtis  says :  "  Un- 
doubtedly, as  has  already  been  said,  it  is  a  principle  of  public 
law,  recognized  by  the  Constitution  itself,  that  birth  on  the  soil 
of  a  country  both  creates  the  duties  and  confers  the  rights  of 
citizenship.  But  it  must  be  remembered,  that  though  the  Consti- 
tution was  to  form  a  government,  and  under  it  the  Unitod  States 
of  America  were  to  be  one  united  sovereign  nation,  to  which 
loyalty  and  obedience  on  the  one  side,  and  from  which  protection 
and  privileges  on  the  other,  would  be  due,  yet  the  several  sovereign 
States,  whose  people  were  then  citizens,  were  not  only  to  continue 
in  existence,  but  with  powers  unimpaired,  except  so  far  as  they 
were  granted  by  the  people  of  the  National  Government.  Among 
the  powers  unquestionably  possessed  by  the  several  States,  was 
that  of  determining  what  persons  should  and  what  persons  should 
not  be  citizens.  It  was  practicable  to  confer  on  the  government 
of  the  Union  this  entire  power.  It  embraced  what  may,  wel? 
enough  for  the  purpose  now  in  view,  be  divided  into  three  parts: 
First,  the  powers  to  remove  the  disabilities  of  alienage,  either  by 
special  acts  in  reference  to  each  individual  case,  or  by  establishing 
a  rule  of  naturalization  to  be  administered  and  applied  by  the 
courts.  Second :  Determining  what  persons  should  enjoy  the  privi- 
leges of  citizenship,  in  respect  to  the  internal  affairs  of  the  several 

agency  must  change  the  decree.  Those  who  framed  the  Constitution  were 
aware  of  this,  and  hence  their  intention  to  exclude  them  as  citizens  within 
the  meaning  of  the  clause  to  which  we  have  referred." 

In  a  number  of  cases  the  courts  held  a  middle  position  according  to  which 
free  negroes  were  described  as  citizens  of  an  order  lower  than  that  of  whites. 
For  these,  and  other  references,  see  Report  on  Citizenship  of  the  United  States 
U006).  H.  R.  Doc.  No.  326,  59th  Congress,  2nd  Session,  pp.  63-66. 


268  United  States  Constitutional  Law. 

States.  Third:  "What  native-born  persons  should  be  citizens  of 
the  United  States.  The  first-named  power,  that  of  establishing  a 
uniform  rule  of  naturalization,  was  granted;  and  here  the  grant, 
according  to  its  terms,  stopped." 

Referring  to  that  clause  of  the  Constitution  which  provides  that 
"  The  citizens  of  each  State  shall  be  entitled  to  all  the  privileges 
and  immunities  of  citizens  of  the  several  States,"  Justice  Curtis 
says :  "  Xowhere  else  in  the  Constitution  is  there  anything  con- 
cerning a  general  citizenship ;  but  here  privileges  and  immunities 
to  be  enjoyed  throughout  the  United  States,  under  and  by  force 
of  the  national  compact,  are  granted  and  secured.  In  selecting 
those  who  are  to  enjoy  these  national  rights  of  citizenship  —  how 
are  they  described  ?  As  citizens  of  each  State.  It  is  to  them  these 
national  rights  are  secured.  The  qualification  for  them  is  not  to 
be  looked  for  in  any  provision  of  the  Constitution  or  laws  of  the 
United  States.  They  are  to  be  citizens  of  several  States,  and,  as 
such,  the  privileges  and  immunities  of  general  citizenship,  de- 
rived from  and  guaranteed  by  the  Constitution,  are  to  be  enjoyed 
by  them.  It  would  seem  that  if  it  had  been  intended  to  constitute 
a  class  of  native-born  persons  within  the  States,  who  should  derive 
their  citizenship  of  the  United  States  from  the  action  of  the  Fed- 
eral Government,  this  was  an  occasion  for  referring  to  them.  It 
cannot  be  supposed  that  it  was  the  purpose  of  this  article  to  confer 
the  privileges  and  immunities  of  citizens  in  all  the  States  upon 
persons  not  citizens  of  the  United  States.  .  .  .  Laving  aside, 
then,  the  case  of  aliens,  concerning  which  the  Constitution  has 
recognized  the  general  principle  of  public  law,  that  allegiance  and 
citizenship  depend  on  the  place  of  birth,  that  it  has  not  attempted 
practically  to  apply  this  principle  by  designating  the  particular 
classes  of  persons  who  should  or  should  not  come  under  it;  that 
when  we  turn  to  the  Constitution  for  an  answer  to  the  question 
what  free  persons,  born  within  the  several  States,  are  citizens  of 
the  United  States,  the  only  answer  we  can  receive  from  any  of 
its  express  provisions  is,  the  citizens  of  the  several  States  are  to 
enjoy  the  privileges  and  immunities  of  citizens  in  every  State, 
and  their  franchise  as  electors  under  the  Constitution  depends  on 


AilEKK'AX     ClTIZKXSHIP.  2C>0 

their  citizenship  in  the  several  States.  Add  to  this,  that  the  Con- 
stitution was  ordained  by  the  citizens  of  the  several  States ;  that 
they  were  k  the  people  of  the  United  States/  for  whom  and  whose 
posterity  the  government  was  declared  in  the  preamble  of  the 
Constitution  to  be  made ;  that  each  of  them  was  '  a  citizen  of  the 
United  States  at  the  time  of  the  adoption  of  the  Constitution/ 
within  the  meaning  of  those  words  in  that  instrument;  that  by 
them  the  government  was  to  be  and  was  in  fact  organized;  and 
that  no  power  is  conferred  on  the  Government  of  the  Union  to 
discriminate  between  them,  or  to  disfranchise  any  of  them  —  the 
necessary  conclusion  is,  that  those  .persons  born  within  the  several 
States,  who  by  force  of  their  respective  constitutions  and  laws, 
are  citizens  of  the  State,  are  thereby  citizens  of  the  United 
States.  ...  It  has  been  objected,  that  if  the  Constitution  has 
left  to  the  several  States  the  rightful  power  to  determine  who 
of  their  inhabitants  shall  be  citizens  of  the  United  States,  the 
States  may  make  aliens  citizens.  The  answer  is  obvious.  The 
Constitution  has  left  to  the  States  the  determination  what  persons 
born  within  their  respective  limits,  shall  acquire  by  birth  citizen- 
ship of  the  United  States,  and  it  has  not  left  to  them  any  power 
to  prescribe  any  rule  for  the  removal  of  the  disabilities  of  alien- 
age.    This  power  is  exclusively  in  Congress."8 

In  effect,  the  Dred  Scott  decision  held  that  native-born  negroes, 
whether  free  or  slave,  living  in  the  United  States,  though  subjects 
of,  that  is,  owing  allegiance  to  the  United  States,  were  not,  and 
could  not  either  by  state  or  federal  action,  be  made  '*'  citizens  "  of 
the  United  States  within  the  meaning  of  the  Constitution. 

9  At  the  first  hearing  of  this  case  before  the  Supreme  Court,  four  justices, 
McLean,  Catron,  Grier,  and  Campbell,  held  that  the  plea  in  abatement,  setting 
up  the  question  of  citizenship,  was  not  properly  before  the  court  because  the 
defendant  had  submitted  and  pled  over  to  the  merits.  Justice  Xefcson  was  in 
doubt  as  to  this.  Upon  the  second  hearing,  Xelson  agreed  with  these  four, 
and,  consequently,  no  one  of  the  five  —  a  majority  of  the  court  —  discussed 
the  question  in  the  opinions  which  they  individually  rendered.  Justices  Wayne 
and  Daniel  agreed  with  Taney  and  Curtis  that  the  plea  was  properly  before 
the  court. 


270  United  States  Constitutional  Law. 

§  130.  The  Fourteenth  Amendment. 

In  186S  was  adopted  the  Fourteenth  Amendment  which  pro- 
vides that  "All  persons  born  or  naturalized  in  the  United  States, 
and  subject  to  the  jurisdiction  thereof,  are  citizens  of  the  United 
States  and  of  the  State  wherein  they  reside." 

The  two  main  purposes  of  this  declaration  undoubtedly  were: 
(1)  The  assertion  that  national  citizenship  is  primary  and  para- 
mount to  state  citizenship;  and  (2)  the  granting  of  both  national 
and  state  citizenship  to  the  negro.  That  national  citizenship  was 
to  be  paramount  is  shown  not  only  in  the  words  just  quoted,  but 
in  the  further  provision  of  the  amendment  that  "  no  State  shall 
make  or  enforce  any  law  which  shall  abridge  the  privileges  and 
immunities  of  citizens  of  the  United  States,  nor  shall  any  State 
deprive  any  person  of  life,  liberty  or  property  without  due  process 
of  law;  nor  deny  to  any  person  within  its  jurisdiction  fhe  equal 
protection  of  the  laws." 

In  the  .Slaughter  House  Cases,  as  we  have  already  learned,10 
the  Supreme  Court  held,  in  effect,  that  this  amendment  did  not 
have  the  effect  of  absorbing  state  citizenship  and  its  appurtenant 
rights  into  the  national  citizenship,  but  that  the  two  remain  as 
distinct  as  before.  Upon  this  point  the  court  declare :  "  It  [the 
clause  defining  citizenship]  declares  that  persons  may  be  citizens 
of  the  United  States  without  regard  to  the  citizenship  of  a  par- 
ticular State,  and  it  overturns  the  Dred  Scott  decision  by  making 
all  persons  born  within  the  United  States  and  subject  to  its  juris- 
diction citizens  of  the  United  States.  That  its  main  purpose  was 
to  establish  the  citizenship  of  the  negro  can  admit  of  no  doubt. 
The  phrase  '  subject  to  its  jurisdiction  '  was  intended  to  exclude 
from  its  operation  children  of  ministers,  consuls,  and  citizens  or 
subjects  of  foreign  States  born  within  the  United  States.11  The 
next  observation  is  more  important.     ...     It  is,  that  the  dis- 

io  Ante,  §  86. 

»  This  interpretation  of  the  phrase  "  subject  to  its  jurisdiction  "  was  a  mere 
dictum  of  the  court,  the  point  not  being  involved  in  the  suit  at  bar.  More- 
over it  was  an  incorrect  dictum  so  far  as  regards  persons  born  within  the 
United  States  of  parents  who  are  aliens.  U.  S.  v.  Wong  Kim  Ark,  169  U.  S. 
649;    18   Sup.   Ct.   Rep.   456;    42   L.   ed.   890. 


Americas  Citizenship.  271 

tinction  between  citizenship  of  the  United  States  and  citizenship 
of  a  State  is  clearly  recognized  and  established.  Xot  only  may 
a  man  be  a  citizen  of  the  United  States  without  being  a  citizen 
of  a  State,  but  an  important  element  is  necessary  to  convert  the 
former  into  the  latter.  He  must  reside  within  the  State  to  make 
him  a  citizen  of  it,  but  it  is  only  necessary  that  he  should  be  bom 
or  naturalized  in  the  United  States  to  be  a  citizen  of  the  Union. 
It  is  quite  clear,  then,  that  there  is  a  citizenship  of  the  United 
States,  and  a  citizenship  of  a  State,  which  are  distinct  from  each 
other,  and  which  depend  upon  different  characteristics  or  cir- 
cumstances in  the  individual." 

In  the  above  it  will  be  noticed  that  the  court  declare  that  an 
additional  element  is  necessary  to  convert  a  federal  citizen  into 
a  state  citizen.  This  additional  element,  furthermore,  is  one  the 
giving  or  refusing  of  which  is  not  within  the  control  of  the  State. 
By  the  mere  act  of  taking  up  residence  within  a  State,  which  the 
State  cannot  prevent,  a  federal  citizen,  ipso  facto,  becomes  a 
citizen  of  the  State.  The  State  thus  no  longer  has  any  power  to 
determine  who  shall  be  or  become  its  own  citizens.  The  federal 
Constitution  fixes  that  once  for  all. 

But  though  the  States  may  not  determine  who  shall  constitute 
its  citizen  body,  they  still  retain,  as  the  decision  in  the  Slaughter 
House  Cases  goes  on  to  declare,  a  full  authority,  free  from  fed- 
eral supervision  and  control,  to  decide  what  political  privileges  — 
as,  for  instance,  the  right  to  vote,  or  to  hold  office  —  shall  exist, 
and  who  shall  be  entitled  to  enjoy  them.  Thus,  upon  the  one 
hand,  federal  and  state  citizenship  does  not  entitle  one,  of  right, 
to  the  suffrage  or  qualify  him  for  public  office.  Upon  the  other 
hand,  the  States  may  grant,  and  in  a  number  of  cases  have  granted, 
these  privileges  to  aliens  who,  though  not  naturalized,  have  de- 
clared their  intention,  according  to  the  requirements  of  the  na- 
tional law  regulating  naturalization,  of  becoming  United  States 
citizens. 

Since  the  adoption  of  the  Fourteenth  Amendment  there  has 
been  no  question  but  that  all  persons,  including  negroes,  born  or 
naturalized  in  the  United  States  become  bv  mere  residence  in  a 


272  Uxited  States  Cokstitutioxal  Law. 

State  citizens  of  the  State.  Furthermore,  there  is,  and  has  been, 
no  question  but  that,  as  Taney  says  in  his  opinion  in  the  Dred 
Scott  case,  a  State  cannot,  by  granting  its  citizenship  to  an  alien, 
create  such  a  one  a  federal  citizen  or  endow  him  with  any  of 
the  privilege  appertaining  to  that  status,  for  the  right  of  naturali- 
zation is,  as  we  shall  see,  exclusively  vested  in  the  Federal  Gov- 
ernment. 

But  though  it  has  never  been  authoritatively  so  decided  by  the 
Supreme  Court  of  the  United  States,  it  would  seem  that  while 
a  State  cannot  prevent  a  federal  citizen  from  becoming  one  of  its 
own  citizens,  it  may  grant  its  own  citizenship  to  one  not  a  fed- 
eral citizen,  and  even  to  one,  as  for  instance  a  Mongolian,  who, 
according  to  existing  federal  law,  cannot  become  a  federal  citi- 
zen. This  position  is  taken  by  the  state  court  of  Wisconsin  in 
Re  Wehlitz.12 

In  a  line  of  decisions  it  has  been  held  that  a  person  may  by 
residence  abroad  lose  his  state  citizenship  within  the  meaning  of 
the  constitutional  provision  which  opens  the  federal  courts  to 
suits  between  citizens  of  different  States,  without  losing  his  fed- 
eral citizenship.13 

Whether  or  not  a  State  may  make  an  alien  one  of  its  own 
citizens  is  quite  largely  an  academic  question;  for,  as  already 
said,  it  can,  without  making  him  such,  endow  him  with  all  the 
privileges  of  citizenship,  and  even  give  him  the  franchise.  In 
Arkansas,  Indiana,  Kansas,  Missouri,  Xebraska,  South  Dakota, 
Texas,  Oregon,  and  Wisconsin,  the  alien  can,  according  to  exist- 
ing (1909)  law,  vote  at  all  elections,  if  he  has  declared  his  inten- 
tion to  become  a  citizen  of  the  United  States.  It  may  be  added, 
also,  that  in  a  number  of  States,  the  alien  who  has  made  this 
declaration  is  given  certain  privileges  which  are  denied  to  other 
aliens;  for  example,  to  hold  real  estate,  and  to  be  employed  on 
public  works.  By  federal  law,  also,  he  may  preempt  and  acquire 
public  lands:14  and,  if  he  dies  before  becoming  actually  natural- 

12  16  Wis.  443.  See  also  Desbois'  Case,  2  Martin,  185.  Contra,  Lanz  v. 
Randall,  4  Dill.  428. 

is  Prentiss  v.  Brennan,  2  Blatchf.  102;  Picquet  v.  Swan,  5  Mason,  35. 
I*  Rev.  Stats.,  Sees.  2259,  2289. 


A.\ij:i;k  ax    ( 'itizkxsim i\  273 

ized,  his  inchoate  right  to  citizenship  descends  to  his  widow  and 
children  who  may  be  naturalized  without  themselv.es  making  the 
declaration. u  lie  is,  on  the  other  hand,  liable  to  eertain  obliga- 
tions not  required  of  other  aliens;  for  example,  the  performance 
of  military  service.16 

§  131.  District  of  Columbia  and  Territories. 

Inhabitants  of  the  District  of  Colombia  and  of  a  Territory  are 
not  citizens  of  a  State  within  the  meaning  of  the  Constitution. 
They  are,  however,  of  course,  citizens  of  the  United  States.17 

§  132.  Boyd  v.  Nebraska  Criticized. 

In  Boyd  v.  Xebraska,18  decided  in  1895,  the  Supreme  Court 
took  the  extreme  view,  that,  in  the  case  of  a  state  law  or  constitu- 
tion which  demanded  as  one  of  the  qualifications  "for  office,  that 
the  incumbent  should  have  been  for  two  years  next  preceding  his 
election  a  citizen  of  the  United  States,  it  did  not  lie  with  the 
tribunals  of  that  State  finally  to  determine  in  any  given  case 
when  such  citizenship  existed;  and,  in  the  case  at  bar,  which  was 
a  proceeding  in  quo  warranto,  the  federal  court  declared  entitled 
to  the  office  of  governor  of  the  State  one  who  the  court  of  that 
State  had  declared  ineligible  because,  as  it  held,  he  was  not  a 
citizen  of  the  United  States.  In  other  words,  the  federal  Supreme 
Court  substituted  its  judgment  for  that  of  the  State's  supreme 
tribunal  as  to  the  existence  of  a  qualification  for  a  state  office 
jn-cribed  by  the  Constitution  of  that  State.  In  so  doing,  to  the 
author's  mind,  the  court  exceeded  its  proper  powers.  Had  there 
been  involved  the  exercise  of  a  right,  or  the  recognition  of  a  privi- 
lege or  immunity  attached  by  the  federal  Constitution  or  laws 
to  federal  citizenship,  there  can  be  no  question  but  that  the  state 

is  Rev.  Stat..  S,c.  21(is:  aixl  Act  .Jim.'  BO,  1006.  Cf.  Boyd  v.  Nebraska,  143 
U.  S.  135;   12  Sup.  (t.  Rep.  375;  36  L.  ed.  103. 

if  Act  March  3,  1863. 

"Hepburn  v.  Ell/ov.  2  Cr.  445  :  2  L.  ed.  332:  Reilly  v.  Lamar,  2  Cr.  344; 
2  L.  ed.  300;  Barney  v.  Baltimore  City.  6  Wall.  280;  IS  L.  ed.  825;  New 
Orleans  v.  Winter,  1  Wh.  91;  4  L.  ed.  44;  American  Insurance  Co.  v.  Canter, 
1  Pet.  511;   7  L.  ed.  242. 

M  143  U.  S.  135;  12  Sup.  Ct.  Rep.  375;  36  L.  ed.  103. 
18 


274  United  States  Constitutional  Law. 

tribunals  should  not  have  been  given  final  authority  to  determine 
as  to  the  existence  of  this  federal  citizenship,  any  more  than  they 
are  permitted  in  the  case  of  a  state  law  alleged  to  impair  the 
obligation  of  a  contract  to  determine  whether  a  contract  exists 
to  be  impaired,  or,  if  it  exists,  whether  it  has  in  fact  been 
impaired.  But  in  Boyd  v.  Nebraska  the  real  question  was  as  to 
the  existence  of  a  qualification  for  a  state  office  —  the  qualifica- 
tions for  which,  it  was  undisputed,  the  Sjtate  might  determine  as 
it  should  see  fit.  The  reasoning  of  Justice  Field  in  his  dissenting 
opinion  upon  this  point  seems  incontrovertible.19 

§  132.   Wong  Kim  Ark  Case. 

In  the  case  of  United  States  v.  Wong  Kim  Ark,20  decided  in 
1898,  the  Supreme  Court  was  called  upon  to  determine  whether, 
under  the  terms  of  the  Fourteenth  Amendment,  persons  born  in 
the  United  States  of  alien  parents,  are  citizens  of  the  United 
States.  In  this  case  the  question  was  as  to  the  citizenship  of  a 
child  of  Chinese  parents  who  not  only  were  not  citizens  of  the 
United  States,  but  could  not,  under  the  existing  laws,  become 
such  by  naturalization.  In  sustaining  Ark's  citizenship  the  court 
held  that  the  clause  of  the  Amendment  declaring  that  "  ail  per- 
sons born  or  naturalized  in  the  United  States,  and  subject  to  the 
jurisdiction  thereof,  are  citizens  of  the  United  States,"  is  but 
declaratory  of  the  common  law  principle  unreservedly  accepted 
in  England  since  Calvin's  case  (the  case  of  Postnati,  decided  in 
1608)  and  in  the  United  States  since  the  Declaration  of  Inde- 
pendence, that  all  persons,  irrespective  of  the  Daf.imifl1it.y  nf  thpir 
parents  born  within  the  territorial  limits  of  a  State,  are  ipso 
facto,  citizens  of  that  State.  The  court  admitted  that  the  prin- 
ciple of  the  Roman  law  according  to  which  the  citizenship  of  the 
child  follows  that  of  the  parent,  irrespective  of  the  place  of  birth, 
had  been  accepted  by  certain  of  the  European  nations,  but  denied 
that  this  principle  had  become  a  true  and  universal  rule  of  inter- 

19  See  ante,  §  83. 

20  169  U.  S.  649;  18  Sup.  Ct.  Rep.  456;  42  L.  ed.  890. 


American  Citizenship.  275 

national  law,  or  if  it  had,  that  it  had  thereby  superseded  the 
rule  of  the  common  law.21 

The  opinion  declares:  "The  first  section  of  the  Fourteenth 
Amendment  of  the  Constitution  begins  with  the  words,  'All  per- 
sons born  or  naturalized  in  the  United  States,  and  subject  to  the 
jurisdiction  thereof,  are  citizens  of  the  United.  .States  and  of  the 
State  wherein  they  reside.'  As  appears  upon  the  face  of  the 
Amendment,  as  well  as  from  the  history  of  the  times,  this  was 
not  intended  to  impose  any  new  restrictions  upon  citizenship,  or 
to  prevent  any  persons  from  becoming  citizens  by  the  fact  of 
birth  within  the  United  States,  who  would  thereby  have  become 

21  The  court  say :  "  At  the  time  of  the  passage  of  that  act,  although  the 
tendency  on  the  continent  of  Europe  was  to  make  parentage  rather  than  birth- 
place, the  criterion  of  nationality,  and  citizenship  was  denied  to  the  native- 
born  children  of  foreign  parents  in  Germany,  Switzerland,  Sweden,  and  Nor- 
way, yet  it  appears  still  to  have  been  conferred  upon  such  children  in  Holland, 
Denmark,  and  Portugal,  and,  when  claimed  under  certain  specified  conditions, 
in  France,  Belgium,  Spain,  Italy,  Greece,  and  Russia.  Cockburn,  Nationality, 
14-21.  There  is,  therefore,  little  ground  for  the  theory  that,  at  the  time  of 
the  adoption  of  the  Fourteenth  Amendment  of  the  Constitution  of  the  United 
States,  there  was  any  settled  and  definite  rule  of  international  law,  generally 
recognized  by  civilized  nations,  inconsistent  with  the  ancient  rule  of  citizen- 
ship by  birth  within  the  dominion.  Nor  can  it  be  doubted  that  it  is  the 
ii'herent  right  of  every  independent  nation  to  determine  for  itself,  and  accord- 
ing to  its  own  Constitution  and  laws,  what  classes  of  persons  shall  be  entitled 
to  its  citizenship.  Both  in  England  and  in  the  United  States,  indeed,  statutes 
have  been  passed  at  various  times  enacting  that  certain  issue  born  abroad  of 
English  subjects,  or  of  American  citizens,  respectively,  should  inherit,  to  some 
extent  at  least,  the  rights  of  their  parents.  But  those  statutes  applied  only 
to  cases  coming  within  their  purport ;  and  they  have  never  been  considered,  in 
either  country,  as  affecting  the  citizenship  of  persons  born  within  its  dominion. 
...  So  far  as  we  are  informed,  there  is  no  authority,  legislative,  executive, 
or  judicial,  in  England  or  America  which  maintains  or  intimates  that  the 
statutes  (whether  considered  as  declaratory,  or  as  merely  prospective),  con- 
ferring citizenship  on  foreign-born  children  of  citizens,  have  superseded  or 
restricted,  in  any  respect,  the  established  rule  of  citizenship  by  birth  within 
the  dominion.  Even  those  authorities  in  this  country  which  have  gone  the 
farthest  toward  holding  such  statutes  to  be  declaratory  of  the  common  law, 
have  distinctly  recognized  and  emphatically  asserted  the  citizenship  of  native- 
born  children  of  foreign  parents.  2  Kent,  Com.  39,  50,  53,  258,  note;  Lynch 
v.  Clarke  (1  Sandf.  Ch.  583,  649)  ;  Ludlam  v.  Ludlam  (26  N.  Y.  356)  [84  Am. 
Dec.  193]." 


276  United  States  Constitutional  Law. 

citizens  according  to  the  law  existing  before  its  adoption."-  It  is 
declaratory  in  form,  and  enabling  and  extending  in  effect.  Its 
main  purpose  doubtless  was,  as  lias  been  often  recognized  by  this 
court,  to  establish  the  citizenship  of  iree  negroes,  which  had 
been  denied  in  the  opinion  delivered  by  Chief  Justice  Taney  in 
Dred  Soott  v.  Sandford,  1857,23  and  to  put  it  beyond  doubt  that 
all  blacks,  as  well  as  whites,  born  or  naturalized  within  the  juris- 
diction of  the  United  .States,  are  citizens  of  the  United  States.14 
But  the  opening  words,  'All  persons  born,'  are  general,  not  to 
say  universal,  restricted  only  by  place  and  jurisdiction,  and  not 
by  color  or  race  —  as  was  clearly  recognized  in  all  the  opinions 
delivered  in  the  Slaughter  House  Cases  above  cited." 

Regarding  the  phrase  of  the  fourteenth  Amendment  "  subject 
to  the  jurisdiction  thereof,"  the  court  say:  "  The  real  object  of 
the  Fourteenth  Amendment  of  the  Constitution  in  qualifying  the 
words,  '  all  person s  born  in  the  United  States.'  by  the  addition, 
'  and  subject  to  the  jurisdiction  thereof,'  would  appear  to  have 
been  to  exclude,  by  the  fewest  and  fittest  words  (besides  children 
of  members  of  the  Indian  tribes,  standing  in  peculiar  relation  to 
the  Xational  Government,  unknown  to  the  common  law),  the  two 
classes  of  cases  —  children  born  of  alien  enemies  in  hostile  occu- 
pation, and  children  of  diplomatic  representatives  of  a  foreign 
State — both  of  which,  as  has  already  been  shown  by  the  law  of 
England,  and  by  our  own  law,  from  the  time  of  the  first  settle- 
ment of  the  English  colonies  in  America,  had  been  recognized 
exceptions  to  the  fundamental  rule  of  citizenship  by  birth  within 
the  country."25 

22  For  comments  on  the  "  history  of  the  times,"  and  the  debates  in  Congress 
as  showing  the  intended  meaning  of  the  citizenship  clause  of  the  Amendment, 
see  pages  697-699  of  the  opinion  in  the  Wong  Kim  Ark  Case.  See  also  Van 
Dyne,  Citizenship  of  the  United  States,  chapter  I. 

23  19  How.  303  |  15  L.  ed.  691. 

24  Citing  The  Slaughter  House  Cases,  16  Wall.  36;  21  L.  ed.  394;  Strauder 
V.  West  Virginia.  100  D.  S.  303:  25  L.  ed.  664;  Ex  parte  Virginia.  100  U.  S. 
339;  25  L.  ed.  676:  Xeal  v.  Delaware.  103  U.  B.  370;  26  L.  ed.  567;  Elk  v. 
Wilkins.  112  XL  S.  94;  5  Sup.  Ct.  Rep.  41 ;  2S  L.  ed.  643. 

25  Citing  Calvin's  Case.  7  Coke.  11S&:  Cockburn.  Nationality,  7:  Dicey, 
Confl.  Laics,  177;  Inglis  v.  Sailor's  Snug  Harbor,  3  Pet.  99;  7  L.  ed.  617; 
2  Kent,  Com.  39. 


American   Citizenship..  277 

'•  The  power  of  naturalization,  vested  in  Congress  by  the  Con- 
stitution," the  opinion  continues,  "  is  a  power  to  confer  citizear 
ship,  not  a  power  to  take  it  away.  'A  naturalized  citizen,'  said 
Chief  Justice  Marshall,  '  becomes  a  member  of  the  society,  pos- 
sessing all  the  rights  of  a  native  citizen,  and  standing,  in  the  view 
of  the  Constitution,  on  the  footing  of  a  native.  The  Constitution 
does  not  authorize  Congress  to  enlarge  or  abridge  those  rights. 
The  simple  power  of  the  national  legislature  is  to  prescribe  a 
uniform  rule  of  naturalization,  and  the  exercise  of  this  power 
exhausts  it.  so  far  as  respects  the  individual.  The  Constitution 
then  takes  him  up,  and,  among  other  rights,  extends  to  him  the 
capacity  of  suing  in  the  courts  of  the  United  States  precisely 
under  the  same  circumstances  which  a  native  might  sue.' 28 
Congress  having  no  power  to  abridge  the  rights  conferred 
by  the  Constitution  upon  those  who  have  become  naturalized 
citizens  by  virtue  of  acts  of  Congress,  a  fortiori,  no  act  or 
omission  of  Congress,  as  to  the  providing  for  the  naturaliza- 
tion of  parents  or  children  of  a  particular  race,  can  affect 
citizenship  acquired  as  a  birthright,  by  virtue  of  the  Constitu- 
tion itself,  without  any  aid  of  legislation.  The  Fourteenth 
Amendment,  while  it  leaves  the  power  where  it  was  before,  in 
Congress,  to  regulate  naturalization,  has  conferred  no  authority 
upon  Congress  to  restrict  the  effect  of  birth,  declared  by  the  Con- 
stitution t<>  constitute  a  sumcient  and  complete  right  to  citizen- 
ship. Xo  one  doubts  that  the  Amendment,  as  soon  as  it  was 
promulgated,  applied  to  persons  of  African  descent  born  in  the 
United  States  wherever  the  birthplace  of  their  parents  might 
have  been;  and  yet.  for  two  JB8M  afterward,  there  was  no  statute 
authorizing  persons  of  that  race  to  be  naturalized.  If  the  omission 
or  the  refusal  of  Congress  to  permit  certain  classes  of  persons  to 
be  made  citizens  by  naturalization  could  be  allowed  the  effect  of 
correspondingly  restricting  the  classes  of  persons  who  should 
become  citizens  by  birth,  it  would  !>e  in  the  power  of  Congress, 
at  any  time,  by  striking  negroes  out  of  the  naturalization  laws, 
and  limiting  those  law-;,  m  they  were  formerly  limited,  to  white 

2«Osborn  v.  I".   Bk  Bank,  'J  Wheat,  74df    ti   L.  ed.  204. 


278  United  States  Constitutional  Law. 

persons  only,  to  defeat  the  main  purpose  of  the  constitutional 
amendment.  The  fact,  therefore,  that  acts  of  Congress  or  treaties 
have  permitted  Chinese  persons  born  out  of  this  country  to  become 
citizens  by  naturalization,  cannot  exclude  Chinese  persons  born 
in  this  country  from  the  operation  of  the  broad  and  clear  words 
of  the  Constitution,  'All  persons  born  in  the  United  States,  and 
subject  to  the  jurisdiction  thereof,  are  citizens  of  the  United 
States.'  " 

The  acceptance  of  the  foregoing  doctrine,  it  was  held,  does  not 
prevent  the  United  States  from  providing  that  children  born 
abroad  of  American  citizens  shall  be  considered  citizens  of  the 
United  States.27 

27  Chief  Justice  Fuller  rendered  in  the  Wong  Kim  Ark  case  a  dissenting 
opinion  concurred  in  by  Justice  Harlan.  These  justices  took  the  position  that 
nationality  was  essentially  a  political  idea  and  as  such  the  constitutional 
provisions  regarding  it  were  to  be  interpreted  in  the  light  of  international 
rather  than  English  municipal  provisions.  "  Obviously,"  they  said,  "  where 
the  Constitution  deals  with  common-law  rights  and  uses  common-law  phrase- 
ology, its  language  should  be  read  in  the  light  of  the  common  law;  but  when 
the  question  arises  as  to  what  constitutes  citizenship  of  the  nation,  involving 
as  it  does,  international  relations,  and  political  as  distinguished  from  civil 
status,  international  principles  must  be  considered,  and  unless  the  municipal 
law  of  England  appears  to  have  been  affirmatively  accepted,  it  cannot  be 
allowed  to  control  in  the  matter  of  construction." 

This  affirmative  acceptance  of  the  English  common  law  upon  this  subject, 
these  justices  are  unable  to  find.  Upon  the  contrary,  they  find  in  the  executive 
practice  and  various  legislative  acts  of  the  United  States  Government  rejection 
of  important  parts  of  the  English  doctrine  of  citizenship.  Thus,  for  example, 
since  the  Declaration  of  Independence,  this  country  has  consistently  rejected 
what,  until  1870,  was  the  doctrine  of  inalienable  allegiance;  that  is,  the 
doctrine  denying  the  general  right  of  expatriation.  Furthermore,  it  is  asserted 
in  this  dissenting  opinion,  that  the  act  of  Congress  providing  that  children 
born  abroad  of  American  parents  are  American  citizens,  is  an  evidence  that 
the  common-law  doctrine  of  jus  soli,  as  distinguished  from  the  civil  rule  of 
jus  sanguinis,  was  not  accepted  as  the  general  principle  governing  natural 
citizenship.  After  a  review  of  the  treaties  of  the  United  States,  with  China 
and  various  acts  of  Congress  and  decisions  of  the  courts  with  reference  thereto, 
Chief  Justice  Fuller  concludes:  "Did  the  Fourteenth  Amendment  impose  the 
original  English  common-law  rule  on  this  country?  Did  the  Amendment 
operate  to  abridge  the  treaty-making  power,  or  the  power  to  establish  an 
uniform  rule  of  naturalization?  I  insist  that  it  cannot  be  maintained  that 
this  government  is  unable  through  the  action  of  the  President,  concurred  in 
by  the  Senate,  to  make  a  treaty  with  a  foreign  government  providing  that  the 


American  Citizenship.  279 

subjects  of  that  government,  although  allowed  to  enter  the  United  States,  shall 
not  be  made  citizens  thereof,  and  that  their  children  shall  not  become  such 
citizens  by  reason  of  being  born,- therein.  A  treaty  couched  in  those  precise 
terms  would  not  be  incompatible  with  the  Fourteenth  Amendment,  unless  it 
be  held  that  that  Amendment  has  abridged  the  treaty-making  power.  Nor 
would  a  naturalization  law  excepting  persons  of  a  certain  race  and  their 
children  be  invalid,  unless  the  Amendment  has  abridged  the  power  of  natural- 
ization. This  cannot  apply  to  our  colored  fellow  citizens,  who  never  were 
aliens  —  were  never  beyond  the  jurisdiction  of  the  United  States.  '  Born  in 
the  United  States,  and  subject  to  the  jurisdiction  thereof,'  and  '  naturalized  in 
the  United  States,  and  subject  to  the  jurisdiction  thereof,'  mean  born  or 
naturalized  under  such  circumstances  as  to  be  completely  subject  to  that 
jui  isdiction,  that  is,  as  completely  as  citizens  of  the  United  States,  who  are 
of  course  not  subject  to  any  foreign  power,  and  can  of  right  claim  the 
exercise  of  the  power  of  the  United  States  on  their  'behalf  wherever  they  may 
be.  When,  then,  children  are  born  in  the  United  States  to  thn.  subjects  of  a 
foreign  power,  with  which  it  is  agreed  by  treaty  that  they  shall  not  be 
naturalized  thereby,  and  as  to  whom  our  own  law  forbids  them  to  be  natural- 
ized such  children  are  not  born  so  subject  to  the  jurisdiction  as  to  become 
citizens,  and  entitled  on  that  ground  to  the  interposition  of  our  government, 
if  they  happen  to  be  found  in  the  country  of  their  parents'  origin  and  alle- 
giance, or  any  other.  ...  I  think  that  it  follows  that  the  children  of 
Chinese  born  in  tliis  country  do  not,  ipso  facto,  become  citizens  of  the  United 
States  unless  the  Fourteenth  Amendment  overrides  both  treaty  and  statute. 
Does  it  bear  that  construction ;  or,  rather,  is  it  not  the  proper  construction 
that  all  persons  born  in  the  United  States  of  parents  permanently  residing 
here  and  stisceptible  of  becoming  citizens,  and  not  prevented  therefrom  by 
treaty  or  statute,  are  citizens,  and  not  otherwise?  But  the  Chinese  under 
their  form  of  government,  the  treaties  and  statutes,  cannot  become  citizens  nor 
acquire  a  permanent  home  here,  no  matter  what  the  length  of  their  stay  may 
be.  Wharton,  Confl.  Laics,  §  12.  ...  It  is  not  to  be  admitted  that  the 
children  of  persons  so  situated  become  citizens  by  the  accident  of  birth.  On 
the  contrary,  I  am  of  opinion  that  the  President  and  the  Senate  by  treaty,  and 
the  Congress  by  naturalization,  have  the  power,  notwithstanding  the  Four- 
teenth Amendment,  to  prescribe  that  all  persons  of  a  particular  race,  or  their 
children,  cannot  become  citizens,  and  that  it  results  that  the  consent  to  allow 
such  persons  to  come  into  and  reside  within  our  geographical  limits  does  not 
entry  with  it  the  imposition  of  citizenship  by  birth  on  children  born  in  the 
United  States  of  parents  permanently  located  therein,  and  who  might  themselves 
become  citizens;  nor,  on  the  other  hand,  does  it  arbitrarily  make  citizens  of 
children  born  in  the  United  States  of  parents  who,  according  to  the  will  of 
their  native  government  and  of  this  government,  are  and  must  remain  aliens." 


CHAPTER  XVIII. 

NATURALIZATION. 
§  133.  Naturalization  by  Statute. 

Each  country  determines,  by  its  own  municipal  law,  the  per- 
sons to  be  admitted  to  its  citizenship. 

Since  the  adoption  of  the  Constitution  it  has  been  recognized 
that  citizenship  of  the  United  States  may  be  obtained  in  two  ways 
— by  birth  within  the  country,  and  by  naturalization.  As  has 
been  already*  learned,  up  to  the  time  of  the  Dred  Scott  decision 
there  was  doubt  whether  birth  within  the  United  States  or  natural- 
ization by  the  General  Government  was  sufficient  to  endow  one 
with  either  federal  or  state  citizenship.  By  that  decision  this 
doubt  was  resolved  in  the  negative,  it  being  held  that  no  one  by 
mere  birth  became  a  citizen  of  the  United  States,  and  that  one 
could  become  a  federal  citizen  only  by  becoming  first  a  citizen  of 
a  State,  though  it  was  also  held,  it  will  be  remembered,  that  a  State 
could  not,  by  making  an  African  negro  one  of  its  own  citizens, 
thereby  endow  him  with  the  general  constitutional  privileges  of 
federal  citizenship.  By  the  Fourteenth  Amendment,  however,  it 
was  declared  that  national  citizenship  is  no  longer  dependent  upon 
state  citizenship,  and  that  mere  birth  within  the  United  States, 
even  though  of  alien  parents,  or  naturalization  by  federal  law,  is 
sufficient  to  create  national  citizenship ;  and  that  residence  in  a 
State  is  sufficient  to  render  such  a  one  a  citizen  of  that  State. 

We  thus  see  that  the  power  given  to  Congress  by  Article  I,  Sec- 
tion VIII,  Clause  4,  of  the  Constitution  "  to  establish  an  uniform 
rule  of  naturalization  "  is  not  to  be  construed,  as  was  once  alleged, 
as  simply  a  power  to  remove  the  disabilities  of  foreign  birth,  leav- 
ing it  to  the  States  to  determine  whether  or  not,  when  such  dis- 
abilities are  removed,  the  individual  shall  become  a  citizen  of  the 
State  where  he  resides,  and  thereby  a  citizen  of  the  United  States 
in  the  full  constitutional  sense  of  the  term ;  but  that  it  is  a  full 
complete  power  on  the  part  of  Congress  to  provide  for  the  creation 

[280] 


Xatcralizatiox.  2&1 

of  federal  citizens  by  the  naturalization  of  persons  of  foreign 
birth.  With  the  exception  of  a  few  early  cases1  there  has  never 
been  any  question  but  that  the  power  of  naturalization,  whatever 
its  scope,  is  veste-d  exclusively  in  Congress.  The  cases  holding 
this  from  the  time  of  Chirac  v.  Chirac2  to  United  States  v.  Wong 
Kim  Ark3  are  too  numerous  to  cite.4 

It  lies  within  the  legislative  discretion  of  Congress  to  determine 
the  mode  of  naturalization,  the  conditions  upon  which  it  will  be 
granted,  and  the  persons  and  classes  of  persons  to  whom  the  right 
will  be  extended ;  but,  as  was  said  in.  the  Wong  Kim  Ark  case,  not 
to  limit  the  civil  and  political  rights  of  naturalized  citizens  be- 
yond the  limits  provided  for  in  the  Constitution. 

Except  as  limited  by  the  Constitution  it  is  within  the  power 
of  Congress  to  determine  the  civil  and  political  rights  which 
naturalized  citizens  shall  enjoy,  and  to  make  these  rights  less  than 
those  possessed  by  native-born  subjects.  The  due  process  of  law 
clause  of  the  Fifth  Amendment,  however,  would  prevent  any  very 
great  discrimination  as  to  civil  rights,  and  this  limitation  is  rein- 
forced by  the  obligations  of  international  comity.  The  Constitu- 
tion itself  provides  that  only  a  native-born  citizen  shall  be 
eligible  to  the  Presidency,5  or  to  the  Vice-Presidency.0 

In  the  United  States  the  granting  of  naturalization  is  held  to 
be  a  judicial  act.7 

Igee  especially  Collet  v.  Collet,  2  Dall.  294;  1  L.  ed.  3S7. 

2  2  \Vh.  259 ;  4  L.  ed.  234. 

3  169  U.  S.  049;  18  Sup.  Ct.  Rep.  456;  42  L.  ed.  890. 

*  For  an  excellent  statement  of  the  exclusiveness  of  the  federal  power,  see 
Taney's  opinion  in  Scott  v.  Sandford.  19  How.  393;  15  L.  ed.  691. 

I  Art.  II,  Sec.  1,  CI.  5. 

6  Twelfth  Amendment. 

TSpratt  v.  Spratt,  4  Pet.  393;  7  L.  ed.  897.  Until  1S70  naturalization  in 
England  was  by  special  act  of  Parliament.  Naturalization  papers  are  now 
granted  by  the  Home  Secretary.  India  and  many  of  the  other  British 
colonies  have  laws  of  their  own  fixing  the  terms  on  which  they  will  grant 
their  own  special  citizenship  to  aliens  —  a  citizenship  which,  of  course,  does 
not  carry  with  it  a  general  Engli-h  citizenship.  This  practice  is  anomalous 
in  that  it  makes  the  one  so  naturalized  swear  fealty  to  the  English  King  and 
repudiate  all  foreign  allegiance,  and  yet  does  not  make  him  an  English  citizen 
except  for  the  particular  colony.  Thus  the  British  Naturalization  Act  of  1870 
(Section   16)    provides:      "All  laws,  statutes,  and  ordinances  which  may  be 


282  United  States  Constitutional  Law. 

Congress  by  statute  determines  the  courts  which  shall  exercise 
the  right  to  naturalize,  and  to  such  courts  the  function  is  ex- 
clusively confined.  Congress  may  authorize,  and  for  many  years, 
has  authorized,  state  courts  to  entertain  naturalization  proceed- 
ings, but  there  is,  of  course,  no  power  on  the  part  of  the  Federal 
Government  to  compel  the  exercise  by  such  state  courts  of  the 
power  so  granted.8 

duly  made  by  the  legislature  of  any  British  possession  for  imparting  to  any 
person  the  privileges,  or  any  of  the  privileges  of  naturalization,  to  be  enjoyed 
by  such  person  within  the  limits  of  such  possession,  shall,  within  such  limits, 
have  the  authority  of  law."  In  an  interesting  note  in  the  Juridical  Review 
(XIV,  299)  entitled  "Naturalization  in  the  Colonies,"  the  question  is  raised 
as  to  the  status  in  foreign  countries  of  a  person  who  has  been  granted  all 
the  rights  of  British  citizenship  within  a  particular  colony,  and  has  sworn 
fealty  to  the  British  King  and  has  foresworn  all  other  allegiance: — whether, 
for  example,  such  a  one  while  in  France  plotting  against  the  English  King 
would  be  guilty  of  treason,  or  what  degree  of  British  protection  such  a 
naturalized  colonial  would  be  entitled  to  in  other  than  British  territory.  The 
author  inclines  to  the  belief  that  such  a  one  would  not,  in  the  case  supposed, 
be  guilty  of  treason,  also  that  a  naturalized  colonial  would  not  be  entitled  to 
British  protection  while  abroad. 

In  the  report  of  the  Inter-Departmental  Committee  on  the  Naturalization 
Law,  presented  to  the  Houses  of  Parliament  July  24,  1901,  it  was  recom- 
mended that  "provision  should  be  made  by  legislation  enabling  a  Secretary 
of  State,  or  the  Governor  of  a  British  possession,  to  confer  the  status  of  a 
British  subject  upon  persons  who  fulfil  the  requisite  conditions  in  any  part  of 
the  British  Dominions,  and  that  the  status  so  conferred  should  be  recognized 
by  British  law  everywhere  within  and  without  His  Majesty's  dominions.  This 
provision  should  be  without  prejudice  to  the  power  of  the  legislature  of  any 
British  possession  to  provide  for  the  conferring  upon  any  persons  under  such 
conditions  as  it  might  see  fit,  the  whole  or  any  of  the  rights  of  British  sub- 
jects within  its  own  territory." 

8  The  question  as  to  the  power  of  the  federal  courts  to  set  aside,  upon  the 
ground  of  fraud,  a  decree  of  naturalization  granted  by  a  state  court,  or  to 
annul  it  by  an  injunction  prohibiting  giving  effect  to  it,  seems  in  doubt, 
as  appears  from  some  decisions  rendered  prior  to  the  Act  of  1906  below 
quoted:  United  States  v.  Norsch,  42  Fed.  Rep.  417;  United  States  v.  Gleason, 
78  Fed.  Rep.  396.  Of.  article  by  Judge  Henry  Stockbridge,  "  the  Law  of 
Naturalization,"  in  the  Green  Bag,  XVII,  644.  The  Act  of  June  29,  1906, 
Section  15,  provides  that  "  it  shall  be  the  duty  of  the  United  States  district 
attorneys  for  the  respective  districts,  upon  affidavit  showing  good  cause 
therefor,  to  institute  proceedings  in  any  court  having  jurisdiction  to  natural- 
ize aliens  in  the  judicial  district  in  which  the  naturalized  citizen  may  reside 
at  the  time  of  bringing  the  suit,  for  the  purpose  of  setting  aside  and  cancel- 


Naturalization.  283 

It  has  been  held  that  naturalization  has  a  retroactive  effect  to 
the  extent  of  removing  liability  to  forfeiture  of  lands  held  dur- 
ing alienage.9 

The  naturalization  of  a  father  operates  as  a  naturalization  of 
his  minor  children  if  they  are  dwelling  within  the  United  States.'0 
This  same  case  holds  that  a  declaration  of  a  father  of  an 
intention  to  become  naturalized  gives  to  his  children  who 
attain  their  majority,  before  their  father's  naturalization  is 
completed,  an  inchoate  citizenship  which,  upon  majority  may 
be  repudiated.  u  Clearly,"  say  the  court,  "  minors  acquire 
an  inchoate  status  by  the  declaration  of  intention  on  the 
part  of  their  parents.  If  they  attain  their  majority  before  the 
parent  completes  his  naturalization,  then  they  have  an  election  to 
repudiate  the  status  which  they  find  impressed  upon  them,  and 
determine  that  they  will  accept  allegiance  to  some  foreign  poten- 
tate or  power  rather  than  hold  fast  to  the  citizenship  which  the 

ing  the  certificate  of  citizenship  on  the  ground  of  fraud  or  on  the  ground 
that  such  certificate  of  citizenship  was  illegally  procured.  Whenever  any 
certificate  of  citizenship  shall  he  set  aside  or  cancelled,  as  herein  provided 
the  Court  in  which  such  judgment  or  decree  is  rendered  shall  make  an 
order  cancelling  such  certificate  of  citizenship  and  shall  send  a  certified  copy 
of  such  order  to  the  Bureau  of  Immigration  and  Naturalization;  and  in 
case  such  certificate  was  not  originally  issued  by  the  Court  making  such 
order  it  shall  direct  the  clerk  of  the  court  to  transmit  a  copy  of  such  order 
and  judgment  to  the  court  out  of  which  such  certificate  of  citizenship  shall 
have  been  originally  issued.  And  it  shall  thereupon  be  the  duty  of  the  clerk 
of  the  court  receiving  such  certified  copy  of  the  order  and  judgment  of  the 
Court  to  enter  the  same  of  record  and  to  cancel  such  original  certificate 
of  citizenship  upon  the  records  and  to  notify  the  Bureau  of  Immigration 
and  -Naturalization  of  such  cancellation."  This  provision  has  been  held  con- 
stitutional in  United  States  v.  Simon,  170  Fed.  680.  This  section  further 
provides  that:  "If  any  alien  who  shall  have  secured  a  certificate  of  citi- 
zenship under  the  provisions  of  this  act  shall,  within  five  years  after  the 
issuance  of  such  certificate,  return  to  the  country  of  his  nativity,  or  go  to  any 
other  foreign  country  and  take  permanent  residence  therein,  it  shall  be  con- 
sidered a  prima  facie  evidence  of  a  lack  of  intention  on  the  part  of  such 
alien  to  become  a  permanent  citizen  of  the  United  States  at  the  time  of  filing 
his  application  for  citizenship,  and,  in  the  absence  of  countervailing  evidence, 
it  shall  be  sufficient  in  the  proper  proceedings  to  authorize  the  cancellation 
of  his  certificate  of  citizenship  as  fraudulent." 

s  Manuel  v.  Wulff.  152  U.  S.  505;  14  Sup.  Ct.  Rep.  651;  38  L.  ed.  532; 
Governor's  Heirs  v.  Robertson.  11  Wh.  332;  6  L.  ed.  488. 

io  Boyd  v.  Nebraska,  143  U.  S.  135;  12  Sup.  Ct.  Rep.  375;  36  L.  ed.  103. 


284  United  States  Constitutional,  Law. 

act  of  the  parent  lias  initiated  for  them.  Ordinarily  this  is  de- 
termined by  application  on  their  own  behalf,  but  it  does  not  fol- 
low that  an  actual  equivalent  may  not  be  accepted  in  lieu  of  a 
technical  compliance." 

§  134.  Naturalization    by    Annexation    of    Territory    and    by 
Treaty. 

Where  territories  are  annexed  either  by  treaty  or  by  conquest, 
the  status  of  their  inhabitants  is  determined  at  the  will  of  the 
annexing  States.  In  all  cases,  however,  in  the  absence  of  any 
treaty  stipulations  to  the  contrary,  the  annexation  of  a  territory 
transfers  to  the  annexing  State  the  allegiance  of  its  inhabitants, 
and  makes  them,  from  the  viewpoint  of  other  nations,  the  citi- 
zens of  that  State.  Whether  or  not,  however,  they  become. its 
citizens  in  the  stricter  constitutional  sense  depends  upon  the  mu- 
nicipal will  of  that  country.  This  branch  of  the  subject  will  be 
treated  in  the  chapter  dealing  with  "  Citizenship  in  the  Terri- 
tories and  Dependencies." 

Besides  naturalization  by  general  acts,  by  treaty,  and  by  con- 
quest, there  have  been  many  instances  in  the  United  States  of 
naturalization  of  specific  individuals  or  groups  of  individuals  by 
special  acts  of  Congress.11 

By  statute  it  is  provided  that  "  all  children  heretofore  born  out 
of  the  limits  and  jurisdiction  of  the  Utiited  States,  whose  fathers 
were  or  may  be  at  the  time  of  their  birth  citizens  thereof,  are  de- 
clared to  be  citizens  of  the  United  States ;  but  the  rights  of  citizen- 
ship shall  not  descend  to  children  whose  fathers  never  resided  in 
the  United  States.12 

The  application  of  this  principle  to  persons  born  in  countries 
which,  like  the  United  States,  claim  as  their  own  citizens  all  per- 
sons born  within  their  limits,  is  to  create  a  double  citizenship. 
This  is  true,  especially,  of  course,  with  reference  to  England. 

11  Cf.  Van  Dyne,  Citizenship  of  the  United  States,  Chapter  VT.  See  the 
same  work,  chapter  VI.  for  questions  of  citizenship  connected  with  the  admis- 
sion of  Territories  as  States. 

"Rev.  Stat.,  §  1993. 


Naturalization.  286 

Most  European  countries  apply  the  doctrine  of  jus  sanguinis 
in  fixing  citizenship.  That  is,  they  treat  as  their  own  citizens 
persons  wherever  born,  whose  parents  are  their  citizens.  In  some 
cases  also,  they  apply  the  jus  soli  as  well,  claiming  as  their  own 
citizens  persons  born  upon  their  soil  of  alien  parents.  This,  for 
example,  is  the  practice  of  France.  Many  States  permit  after 
majority  an  election  to  one  born  in  one  country  of  parents  who  are 
citizens  of  another ;  for  example,  France,  Spain,  Belgium,  Greece, 
Bolivia,  Italy,  Portugal,  Mexico,  and  Great  Britain.  The  British 
A<-x  of  IS 70  declares  that  "  any  person  who  is  born  out  of  Her 
Majesty's  dominions,  of  a  father  being  a  British  subject,  may,  if 
of  full  age,  and  not  under  any  disability,  make  a  declaration  of 
alienage,  .  .  .  "and,  from  and  after  the  making  of  such  decla- 
ration, shall  cease  to  be  a  British  subject."  In  default  of  such 
declaration  he  remains,  by  birth,  a  British  subject. 

Double  citizenship  is  also  created,  as  we  shall  see  in  those  cases 
in  which  one  country  naturalizes  the  citizens  of  another  country 
which  does  not  admit  the  right  of  the  individual  to  expatriate 
himself  without  the  consent  of  the  State  of  his  natural  allegiance. 

The  difficulties  and  conflicting  claims  arising  out  of  these  cases 
of  double  allegiance  have  been  numerous,  and  have  usually  I>een 
settled,  each  case  upon  its  own  merits,  by  way  of  compromise  and 
upon  doctrines  of  comity,  rather  than  by  the  establishment  of  any 
very  general  principles.  Thus  it  has  been  held  upon  numerous 
occasions  by  the  executive  branch  of  our  government  thatr  our  law 
cannot  operate  to  relieve  such  persons  from  their  allegiance  to 
the  countries  in  which  they  are  born  so  long  as  they  remain  in 
such  countries.  It  has  also  been  generally  held  that  where  a 
naturalized  American  citizen  returns  to  his  native  country,  he  may 
be  held  bound  by  such  obligations,  as,  for  example,  the  rendition  of 
military  service,  as  may  have  been  due  by  him  at  the  time  of  his 
departure  from  his  native  country.13 

»  Of.  W.  S.  Tinsrle,  Germany's  Claims  Upon  German  Americans  in  Germany, 
Philadelphia,  1903. 


CHAPTER  XIX. 

EXPATRIATION.! 

§  135.  Denial  of  Right  of  Expatriation. 

Until  comparatively  recent  times,  except  in  the  United  States, 
the  right  of  a  citizen  to  cast  off  his  natural  allegiance,  the 
allegiance  into  which  he  is  born,  was  generally  denied  by  the 
States  of  the  world. 

This  denial  was  made,  but  not  always  enforced  in  practice, 
in  England  down  to  the  time  of  her  Naturalization  Act  of  1870. 
Blackstone  in  his  Commentaries  declared :  "  It  is  a  principle  of 
universal  law  that  the  natural-born  subject  of  one  prince  cannot, 
by  any  act  of  his  own,  no,  not  by  swearing  allegiance  to  another, 
put  off  or  discharge  his  natural  allegiance  to  the  former ;  for  this 
natural  allegiance  is  intrinsic,  and  primitive,  and  antecedent  to 
the  other,  and  cannot  be  divested  without  the  concurrent  act  of 
that  prince  to  whom  it  was  first  due.  Indeed,  the  natural-born 
subject  of  one  prince,  to  whom  he  owes  allegiance,  may  be  en- 
tangled by  subjecting  himself  absolutely  to  another ;  but  it  is  his 
own  act  that  brings  him  into  these  straits  and  difficulties,  of  owing 
service  to  two  masters ;  and  it  is  unreasonable  that,  by  such  volun- 
tary act  of  his  own,  he  should  be  able  at  pleasure  to  unloose  those 
bands  by  which  he  is  connected  to  his  natural  prince." 

The  statute  3  Jac.  1,  chap.  4,  provided  that  promising  obedience 
to  any  other  prince,  State,  or  potentate,  subjected  the  person  so 
doing  to  be  adjudged  a  traitor,  and  to  suffer  the  penalty  of  high 
treason. 

In  respect  to  the  naturalization  law  of  the  United  States,  passed 
in  1795,  Lord  Grenville  wrote  to  our  minister,  Rufus  King:  "  No 
British  subject  can,  by  such  a  form  of  renunciation  as  thafwhich 

i  In  addition  to  the  general  authorities  on  citizenship,  see  chapter  VII  of 
Moore's  American  Diplomacy,  and  the  address  of  Hon.  Oscar  S.  Straus  en- 
titled "The  United  States  Doctrine  of  Citizenship  and  Expatriation"  before 
the  American  Social  Science  Association,  1901. 

[286] 


Expatriation.  287 

is  prescribed  in  the  American  law  of  naturalization,  divest  himself 
of  his  allegiance  to  his  sovereign.  Such  a  declaration  of  renuncia- 
tion made  by  any  of  the  King's  subjects  would,  instead  of  operat- 
ing as  a  protection  to  them,  be  considered  an  act  highly  criminal 
on  their  part.2 

The  assertion  by  England  of  this  principle  with  reference  to  her 
subjects  who  had  become  naturalized  American  citizens  was  one 
of  the  causes  of  the  War  of  1812.3 

In  a  proclamation  issued  in  1807,  the  King  declared:  "Now 
we  do  hereby  warn  all  mariners,  seafaring  men,  and  others  our 
natural-born  subjects,  that  no  such  letters  of  naturalization  or 
certificates  of  citizenship  do  or  can  in  any  manner  divest  our 
natural-born  subjects  of  the  allegiance  or  in  any  degree  alter  the 
duty  which  they  owe  to  us,  their  lawful  sovereign." 

In  the  treaty  of  Ghent  which  marked  the  conclusion  of  this 
war  no  mention,  one  way  or  the  other,  was  made  of  this  English 
doctrine;  but  in  future  England  ceased  to  enforce  her  claims  in 
an  arbitrary  manner  against  English  born,  but  American  natural- 
ized, citizens. 

By  the  act  of  1870  England  definitely  abandoned  the  doctrine. 
By  that  statute  it  is  recognized  that  by  voluntarily  assuming 
citizenship  in  another  State,  British  citizenship  is  lost,  though 
such  change  of  allegiance  is  not  to  operate  to  discharge  the  ex- 
patriated one  from  liability  for  acts  or  defaults  committed  prior 

2  2  Am.  State  Pap.,  p.  149;  Fitch  v.  Weber,  6  Hare,  p.  Si. 

3  Moore  (Op.  Cit.,  p.  173)  calls  attention  to  the  fact  that  the  dispute  over 
impressment  as  a  whole  did  not  involve  the  crucial  point  of  the  later  con- 
troversies as  to  expatriation.  "  The  burden  of  the  complaint  in  regard  to 
Impressment,"  writes  Moore,  "as  defined  in  Madison's  war  message  of  June 
1,  1812,  was  that  Great  Britain  sought,  under  cover  of  belligerent  right,  to 
execute  her  municipal  law  of  allegiance  on  board  the  ships  of  other  countries 
on  the  high  seas,  where  no  laws  could  operate  '  but  the  laws  of  the  country  to 
which  the  vc-sels  belong.'  Precisely  the  same  position  was  maintained  by 
WeSster  in  his  correspondence  with  Lord  Ashburton  in  1842.  Ships  on  the 
high  seas  are  treated,  for  purposes  of  jurisdiction,  as  if  they  were  part  of 
the  territory  of  the  nation  to  which  they  belong.  The  complaint  that  the 
British  Government  enforced  the.  English  law  of  allegiance  on  board  of 
American  vessels  on  the  high  seas  was  manifestly  a  different  theory  from 
objecting  to  her  enforcement  of  the  same  law  within  British  jurisdiction." 


288  United  States  Constitutional  Law. 

to  expatriation.  The  act  also  provides  for  the  naturalization  of 
resident  aliens  of  countries  whose  laws  or  treaties  permit  expatria- 
tion, and  declares  such  naturalized  citizens  entitled  to  the  protec- 
tion of  Great  Britain  everywhere  except  in  the  respective  countries 
of  their  original  allegiance. 

By  a  number  of  foreign  States,  among  them  Turkey  and 
Russia,  the  doctrine  of  inalienable  allegiance  is  still  asserted.  In 
many  others  it  is  partially  upheld.  "With  most  of  these  countries 
the  United  States  has  entered  into  special  treaties  governing  the 
subject  of  naturalization.4 

§  136.  Right  Recognized  by  United  States. 

Since  1868  the  right  of  expatriation  has  been  uniformly  asserted 
by  all  the  departments  of  the  United  States  Government.  Prior  to 
that  time,  the  executive,  judicial,  and  legislative  branches  were 
not  always  in  harmony  upon  this-  point.  During  the  early  years, 
the  executive  branch  of  the  government,  while  asserting  the  right 
of  aliens  to  become  naturalized  citizens  of  the  United  States,  did 
not  affirm  that  this  change  in  political  status  should  be  recognized 
by  the  States  of  their  respective  original  allegiance.  Mr.  Jeffer- 
son as  Secretary  of  State  in  1793  wrote:  "  Our  citizens  are  cer- 
tainly free  to  divest  themselves  of  that  character  by  emigrating, 
and  other  acts  manifesting  their  intention,  and  may  then  become 
the  subjects  of  another  power,  and  free  to  do  whatever  the  sub- 
jects of  that  power  may  do."5  A  little  later,  Marshall,  as  Secretary 
of  State,  while  affirming  the  right  of  an  alien  without  the  consent 
of  his  native  State  to  seek  naturalization,  observed  that  other 
States  should  recognize  such  naturalization  "  unless  it  be  one 
which  may  have  a  conflicting  title  to  the  person  adopted."  At 
various  times  the  Executive  Department  of  the  United  States  Gov- 
ernment asserted  that  a  naturalized  American  citizen  was  entitled, 

*  For  the  various  attitudes  of,  and  treaty  relations  with,  foreign  States, 
Bee  Moore,  Digest  of  International  Law,  Vol.  Ill;  Van  Dyne.  Citizenship, 
Pt.  IV,  Chap.  II;  The  American  Passport,  pp.  127  et  seq.;  and  Report  on 
Citizenship  of  the  United  States,  Expatriation,  and  Protection  Abroad,  59th 
Cong.,  2d  Sess.,  Doc.  324. 

6 Jefferson's  Works   (Washington  ed.),  IV,  37. 


Kxi'ATItlATIoX.  1'-.' 

while  abroad,  to  the  same  protection  at  the  hands  of  the  American 
Government  as  that  to  which  a  native-born  citizen  was  entitled. 
Air.  Buchanan  was,  however,  the  first  Secretary  of  State  to  declare 
in  unqualified  terms  that  the  naturalized  American  citizen  was  en- 
titled to  the  full  protection  of  the  American  Government  while 
abroad,  and  even  in  the  State  of  his  original  allegiance,  whatever 
might  be  the  doctrines  and  laws  of  that  country  with  reference  to 
expatriation.0 

Later  Secretaries  of  State  did  not  continue  to  state  the  Ameri- 
can doctrine  as  absolutely  as  had  Buchanan.  Since  1868,  how- 
ever, an  express  legislative  declaration  has  prevented  the  Executive 
Department  from  qualifying  the  doctrine  in  words,  but  in  fact,  it 
has  not  been  rigorously  applied  in  cases  where  neither  justice  nor 
expediency  has  demanded  it. 

Since  the  first  years  of  the  Constitution  the  legislation  of  Con- 
gress upon  the  subject  of  naturalization  has  implied  the  right  of 
expatriation.  By  the  act  of  1868  which  is  still  in  force,  the  right 
of  expatriation  was  explicitly  declared  in  the  most  unqualified 
manner.  "  Whereas,"  the  act  reads,  "  the  right  of  expatriation 
is  a  natural  and  inherent  right  of  all  people,  indispensable  to  the 
enjoyment  of  the  rights  of  life,  liberty,  and  the  pursuit  of  happi- 
ness ;  and  whereas,  in  the  recognition  of  this  principle  the  govern- 
ment has  freely  received  emigrants  from  all  nations,  and  invested 
tkem  with  the  rights  of  citizenship ;  and  whereas,  it  is  claimed  that 

6  Moore  [Am.  Dip.,  p.  174)  writes:  "A  comprehensive  examination  of  our 
unpublished  diplomatic  records  enables  me  to  say  that  the  first  Secretary  of 
State  to  announce  the  doctrine  of  expatriation  in  its  fullest  extent  —  the 
doctrine  that  naturalization  in  the  United  States  not  only  clothes  the  indi- 
vidual with  a  new  allegiance  but  also  absolves  him  from  the  obligations  to 
the  old  —  was  James  Buchanan." 

In  1843,  writing  to  the  American  minister  in  London,  Buchanan  said: 
"  We  can  recognize  no  difference  between  the  one  and  the  other,  nor  can  we 
permit  this  to  be  done  without  protesting  and  remonstrating  against  it  in  the 
strongest  terms.  The  subjects  of  other  countries  who  from  choice  haw 
abandoned  their  native  land,  and,  accepting  the  invitation  which  our  laws 
present,  have  emigrated  to  the  United  States  and  become  American  citizens, 
are  entitled  to  the  very  same  rights  and  privileges  as  if  they  had  been  born 
in  the  country.  To  treat  them  in  a  different  manner  would  be  a  vialation  of 
our  plighted  faith  as  well  as  our  solemn  duty." 

19 


290  United  States  Constitutional  Law. 

such  American  citizens,  with  their  descendants,  are  subjects  of 
foreign  States,  owing  allegiance  to  the  governments  thereof;  and 
whereas,  it  is  necessary  to  the  maintenance  of  public  peace  that 
this  claim  of  foreign  allegiance  should  be  promptly  and  finally  dis- 
allowed: Therefore  any  declaration,  instruction,  opinion,  order,' 
or  decision  of  any  officer  of  the  United  States  which  denies,  re- 
stricts, impairs,  or  questions  the  right  of  expatriation,  is  declared 
inconsistent  with  the  fundamental  principles  of  the  Republic.  All 
naturalized  citizens  of  the  United  States,  while  in  foreign 
countries,  are  entitled  to  and  shall  receive  from  this  government 
the  same  protection  of  persons  and  property  which  is  accorded  to 
native-born  citizens.7 

The  enforcement,  or  rather  the  attempted  enforcement,  of  this 
legislative  declaration  has  led  the  diplomatic  branch  of  our  gov- 
ernment into  many  difficulties.  With  reference  to  a  considerable 
number  of  countries  these  difficulties  have  in  a  great  measure  been 
obviated  by  the  negotiation  with  them  of  naturalization  treaties. 

Judicial  decisions  in  the  United  States  as  to  the  existence  of 
a  right  of  expatriation  in  the  absence  of  statutes  creating  it  have 
not  been  uniform.  In  Talbot  v.  Janson,8  decided  in  1795,  Justice 
Iredell  denied  that  the  individual  had  a  right  of  expatriation  at 
will.  So  also  in  Murray  v.  The  Charming  Betsey,0  The  Santissima 
Trinidad/0  Inglis  v.  Sailor's  Snug  Harbor,11  Shanks  v.  Du- 
pont,12  the  court,  while  not  in  each  instance  passing  directly  upon 
the  point,  showed  an  inclination  to  accept  the  common-law  princi- 
ple which  denied  the  existence  of  an  individual  right  of  expatria- 
tion. This  same  ground  was  taken  by  Chancellor  Kent  in  his 
Commentaries.13  In  IFIlvaine  v.  Coxe,14  however,  it  was  held 
that  persons  born  in  the  colonies  and  remaining  in  the  country 
and   giving  their  allegiance   to   the  new  governments   after   the 

7  Rev.  Stat.,  §§  1999,  2000. 

8  3  Dall.  133;   1  L.  ed.  540. 

9  2  Cr.  04;   2  L.  ed.  208. 
J0  7  Wh.  283 ;  5  L.  ed.  454. 
"3  Pet.  99;  7  L.  ed.  617. 
12  3  Pet.  242 ;  7  L.  ed.  666. 
is  Lecture  XXV. 

n  2  Cr.  280 ;  2  L.  ed.  279 ;  4  Cr.  209 ;  2  L.  ed.  598. 


Expatriation.  £91 

Declaration  of  Independence  were  released  from  their  British 
allegiance  and  came  under  the  protection  of  and  bound  in  alle- 
giance to  the  newly  established  American  governments.  Since 
1868  the  courts  have  not  questioned  the  right  of  the  citizen  volun- 
tarily to  expatriate  himself  and  become  a  citizen  of  another 
country.15 

15  See  Moore,  Digest  of  International  Laic,  III,  §  433,  and  authorities  there 
cited.  See  also  article  by  Slaymaker  entitled  "  The  Right  of  the  American 
Citizen  to  Expatriate"  in  The  American  Law  Revieic,  XXXVII,  191. 

The  following  convenient  summary  of  the  attitudes  of  various  foreign 
governments  with  reference  to  the  subject  of  expatriation  is  given  in  the 
Report  of  the  Citizenship  Commission.  (H.  R.  Doc.  326,  59th  Cong.,  2d 
Sess.,  p.  12.) 

"A.  The  right  of  voluntary  expatriation  is  wholly  denied.  A  subject  has  no 
right  to  leave  the  territory  of  his  origin  without  the  express  permission  of 
his  sovereign;  he  may  not  renounce  his  original  allegiance  or  assume  another, 
and  upon  his  return  to  the  jurisdiction  of  his  origin  he  is  liable  to  arrest  and 
punishment.      (For  example,  this  is  the  attitude  of  Russia  and  Turkey.) 

B.  The  right  of  expatriation  is  admitted,  provided  there  exists  at  the  time 
no  unperformed  obligation  to  military  service;  but,  in  case  this  obligation 
exists,  naturalization  in  a  foreign  country  obtained  before  it  is  discharged  i8 
considered  as  void.      (For  example,  this  is  the  attitude  of  France.) 

C.  The  right  of  expatriation  is  admitted,  but  naturalization  in  a  foreign 
country  does  not  become  valid  from  the  point  of  view  of  the  country  of  origin 
without  an  express  and  formal  renunciation  of  the  original  citizenship  made 
in  the  country  of  origin  and  in  accordance  with  its  forms  of  law.  (For 
example,  this  is  the  attitude  of  Switzerland.) 

D.  The  right  of  expatriation  is  admitted,  but,  while  naturalization  abroad 
in  freely  allowed,  in  case  of  a  return  to  the  country  of  origin  the  person  thus 
naturalized  is  not  denied  the  rights  of  citizenship  in  that  country,  but  is 
permitted  without  further  formality  to  retain  his  rights  as  a  citizen  as  if  he 
had  never  departed  from  the  country.  (For  example,  this  is  the  attitude  of 
Venezuela.) 

E.  The  right  of  expatriation  is  admitted,  and  citizenship  absolutely  ceases 
(although  it  may  afterward  be  legally  recovered)  at  the  moment  when  the 
act  of  naturalization  in  a  foreign  country  is  performed.  (This  is  the  attitude 
of  the  majority  of  foreign  governments.) 

F.  The  right  of  expatriation  is  admitted  and  is  assumed  to  have  been 
accomplished  when  a  citizen  absents  himself  from  the  parent  country  for  a 
prolonged  period  of  years.  (For  example,  this  is  the  attitude  of  the  Nether- 
lands.)" 


CHAPTER  XX. 

THE  LEGAL  STATUS  OF  IXDIAXS. 

The  question  of  the  legal  status  of  Indians,  which  for  many 
years,  and  especially  during  the  last  quarter  of  the  nineteenth 
century,  decreased  in  practical  importance,  has,  since  the  annexa- 
tion of  the  Philippine  Islands,,  gained  a  new  constitutional  value 
for  tiie  reason  that  upon  the  islands  there  are  many  tribes  which 
for  years  to  come  it  may  be  necessary  to  govern  in  ways  analogous 
to,  if  not  identical  with,  those  which,  in  the  past,  we  have  em- 
ployed in  the  control  of  the  red  men  in  the  United  States  proper. 
It'  will,  therefore,  be  well  to  treat  this  subject  rather  more  par- 
ticularly than  we  should  otherwise  have  done. 

Tha- legal  relations  of  the  Indians  to  various  governments,  estab- 
lished by  their  white-  conquerors,  have  had  reference,  broadly 
speaking:  (!)  to  their  rights  to  the  lands  occupied  by  them;  and 
(2)  to  their  political  status  either  as  tribes  or  as  individuals. 

§^  VST.  Indian  Lands. 

With  reference  to  the  title  possessed  by  Indians  in  the  lands 
occupied  or  hunted  over  by  them,  the  principle  was  from  the  first 
applied  by  the  white  settlers  that  by  discovery  and  occupation  the 
title  in  fee  to  all  the  lands  thus  taken  possession  of  became  vested 
in  the  sovereign  of  the  State  under  whose  authority  the  conquest 
was  made.1 

This  principle  that  the  original  title  to  all  the  land  within  a 
State  is-  in  the  sovereign  of  that  State,  and  that  by  grant  from 
him  all  individual  titles  are  obtained,  was  the  feudal  one  which 

i  In  earlier  years  the  attempt  was  made  to  establish  in  international  law 
the  principle  that  mere  discovery  of  unoccupied  land,  or  land  inhabited  by 
■uncivilized  tribes,  is  sufficient  to  give  title  to  the  sovereign  by  whose  subjects 
the  discovery  was  made.  This  principle,  however,  never  obtained  general 
recognition,  and  the  present  doctrine  was  established  that  in  order  to  give  a 
national  title  which  other  States  are  bound  to  respect,  discovery  must  be 
followed,  within  a  reasonable  time,  by  effective  occupation. 

[292] 


The  Legal  Status  of  Indians.  293 

the  CIOWH  lawyers  of  England  bad  developed ;  and,  after  the  sep- 
aration fnan  that  country,  the  American  Commonwealths  con- 
tinued to  apply  the  doctrine,  substituting,  however,  of  course,  the 
respective  States  for  the  English  Crown.  With  the  formation  of 
the  present  Union*  and  the  transfer  to  it  by  the  several  States -df 
their  respective  claims  to  public  lands,  the  L  nited  States  was  sub- 
stituted as  the  owner  of  all  lands  to  which  private  titles 'had  not 
ksen  obtained.  This  grant  to  the  Federal  Government  carried. -with 
it  whatever  intercut  or  title  the  several  States  had  had  in  the 
Indian  lands. 

The  first  discussion  in  the  Supreme  Court  of  the  United  "States 
of  the  title  or  interest  still  retained  by  the  Indians  in  the  lands  oc- 
cupied by  them,  was  in  the  ease  of  Fletcher  v.  Peck.2  This  case 
involved  the  question  whether  the  State  of  Georgia  had  been  seized 
in  fee  of  certain  lands  which  it  had  sold,  but  later  resumed  pos- 
session of.  Marshall  in  his  opinion,  without  attempting  any  argu- 
ment, said :  "It  was  doubted  whether  a  State  can  be  seized  in  fee 
of  lands  subject  to  the  Indian  title,  and  whether  a  decision  that 
they  were  seized  in  fee,  might  not  be  construed  to  amount  to  a- de- 
cision that  their  grantee  might  maintain  an  ejectment  *f or  them, 
notwithstanding  that  title.  The  majority  of  the  court  is  of  opinion 
that  the  nature  of  the  Indian  title,  which  is  certainly  to  be  in- 
spected by  all  courts,  until  it  be  legitimately  extinguished,  is  not 
such  as  to  be  absolutely  repugnant  to  seizin  in  fee  on  the  part  of 
the  State."  3 

*U  Cr.  87;  3  L.  ed.  102. 

3  .lust  ice  John*on  diwcattd  from  this  doctrine,  holding  that  the  fee  was  in 
the  Indians,  and  that  the  interest  of  the  United  States  consisted  in  a  right 
of  pre-emption.  He  said:  "  What,  then,  practically,  is  the  interest  of  the 
States  in  the  soil  of  the  Indians  within  their  boundaries?  Unaffected  by 
particular  treaties,  it  is  nothing  more  than  -what  was  assumed  at 'the 'first 
•■ment  of  the  country,  to  wit.  a  right  of  conquest  or  of  purchase,  exclu- 
sively nf  all  competitors  within  certain  definite  limits.  All  restrictions  upon 
the  right  of  soil  in  the  Indians  amount  only  to  an  exclusion  of  all  com- 
l>  tit^  is  from  their  markets;  and  the  limitation  upon  their  sovereignty 
ii»ii. imts  to  the  right  of  governing  every  person  within  their  limits  except 
UwflyWk  If  the  interest  of  Georgia  was  nothing  more  than  a  pre-emptive 
right,  how  could  that  be  called  a  fee  simple,  which  was  nothing  more  than  a 
power  to  acquire  a   fee  simple  by  purchase,   when   the  proprietors  should  be 


294  United  States  Constitutional  Law. 

In  Johnson  v.  M'Intosh4  the  question  of  titles  to  Indian  lands 
was  thoroughly  examined  and  a  conclusion  reached  which  was 
substantially  the  same  as  that  boldly  stated  without  argument  by 
Marshall  in  the  Fletcher  v.  Peck  case.  In  substance  it  was  held 
that  while  the  fee  to  Indian  lands  is  in  the  United  States,  and, 
therefore,  that  the  Indians  are  not  able  to  grant  titles  to  the  same 
which  will  be  recognized  in  the  courts  of  the  United  States,  never- 
theless these  Indians  have  certain  possessory  rights  from  which 
they  may  be  dispossessed  by  the  United  States  only  with  their  con- 
sent, and  upon  compensation  therefor. 

The  doctrines  thus  laid  down  in  1823  by  Marshall  in  Johnson 
v.  M'Intosh  have  never  been  changed,  and  the  practice  of  the 
United  States  government  uniformly  throughout  its  history  has 
been  in  acordance  with  it.  That  is  to  say,  where  Indians  have 
been  dispossessed  of  their  lands  their  consent,  in  form  at  least,  has 
been  obtained,  and  compensation  made  either  in  the  form  of  money 
or  other  lands.  Where  tribal  relations  have  been  maintained  these 
possessory  rights  have  been  held  to  be  vested  in  the  tribes  re- 
spectively, and  not  severally  in  the  individual  Indians.  From 
time  to  time,  however,  as  we  shall  see,  the  United  States  Govern- 
ment has  provided  for  the  dividing  up  of  these  tribal  lands  and 
their  apportionment  in  severalty  among  the  individual  Indians. 

§  138.  The  Legal  Status  of  Indians. 

From  the  earliest  times  the  Indians,  though  treated  as  subject 
to  the  sovereignty  first  of  the  foreign  colonizing  powers,  then  of 
the  colonies  or  States,  and,  finally,  of  the  United  States,  have  been 
considered  not  as  citizens  or  subjects,  that  is,  as  members  of  the 
various  bodies  politic  within  whose  midst  they  have  lived,  but,- 
from  the  constitutional  viewpoint,  as  aliens,  and  their  tribes  as 
foreign  nations  to  be  dealt  with  as  such,  namely,  by  treaties  and 

pleased  to  sell?  And  if  this  was  anything  more  than  a  mere  possibility,  it 
certainly  was  reduced  to  that  state  when  the  State  of  Georgia  ceded  to  the 
United  States,  by  the  Constitution,  both  the  power  of  pre-emption  and  of 
conquest,  retaining  for  itself  only  a  resulting  right  dependent  on  a  purchase 
or  conquest  to  be  made  by  the  United  States." 
<  8  Wh.  543 ;  5  L.  ed.  681.  * 


The  Legal  Status  of  Indians.  295 

agreements  rather  than  by  statutes.  As  alien  nations,  their  mem- 
bers have  not,  in  default  of  express  provisions  to  the  contrary,  been 
held  subject  to  the  general  laws  of  the  States  in  which  they  have 
resided  or  to  the  statutes  of  the  General  Government.  The  rela- 
tions of  Indians  to  one  another  have  been  held  to  be  a  matter  for 
the  several  tribal  authorities  to  regulate,  and  when  these  tribal 
authorities  have  been  impotent,  the  Indians  have  lived  practically 
without  law. 

At  the  same  time,  however,  that  these  Indians  have  thus  en- 
joyed tribal  autonomy,  and  their  relations  to  the  States  and  the 
Federal  Government  regulated  by  treaties  and  agreements  rather 
than  by  statute,  and  their  tribes  spoken  of  as  foreign  nations,  there 
has  never  been  any  question  but  that,  in  reality,  the  sovereignty 
over  them  after  the  Revolution  and  prior  to  1789  was  in  the  in- 
dividual States,  and  since  that  time  in  the  United  States.  From 
the  point  of  view  of  general  international  relations  the  Indians 
have  ever  been  subjects  of  the  American  States  or  the  United 
States,  and,  consequently,  foreign  States  have  never  been  recog- 
nized to  have  a  right  to  deal  directly  with  them.  Furthermore, 
from  the  point  of  view  of  American  constitutional  law,  such  at- 
tributes of  independence  and  sovereignty  as  they  have  enjoyed  have 
been  derived  by  concession  from  the  States,  or,  since  1789,  from 
the  Federal  Government.  Hence  these  rights  have  been  at  all 
times  subject  to  withdrawal  without  the  Indians'  consent.  This 
was  conspicuously  shown  by  the  Act  of  Congress  of  1871.  This 
law  for  the  enactment  of  which  the  consent  of  the  Indians  was 
neither  sought  nor  obtained  declared:  "Xo  Indian  nation  or 
tribe  within  the  territory  of  the  United  States  shall  be  acknowl- 
edged or  recognized  as  an  independent  nation,  tribe  or  power  with 
whom  the  United  States  may  contract  by  treaty."  5 

Since  this  act  of  1871  the  legal  supremacy  of  the  United  States 
has  been  further  shown  by  a  number  of  legislative  acts,  some  of 
them  extending  the  authority  of  federal  laws  and  the  jurisdiction 
of  the  federal  courts  over  acts  previously  subject  exclusively  to  the 
authority  of  the  tribes;  others  providing  for  the  apportionment  in 

5  Rev.  Stat.,  §  2079. 


296  United  States  Constitutional  Law. 

severalty  of  the  tribal  lands  and  the  naturalization  of  Indians  with- 
out their  request  or  consent. 

From  the  iirst  settlement  of  the  American  colonies  the  Indians 
were  treated  as  alien  peoples  outside  of  the  control  of  domestic 
laws.  Xo  attempt  was  made  to  interfere  with  their  domestic  affairs 
or  systems  of  self-government,  except  to  endeavor  to  keep  out  the 
agents  of  other  European  powers  who  might  engage  them  in 
foreign  alliance.  When  their  lands  were  desired,  they  were  pur- 
chased and  not  confiscated.  Purchases  by  individuals,  however, 
were  not  permitted  except  with  governmental  permission.  Thus, 
typical  is  the  proclamation  of  the  King  of  England  in  17G-3  after 
the  ratification  of  the  Articles  of  Peace  with  France,  in  which  it 
was  declared:  "And  we  do  further  declare  it  to  be  our  royal  will 
and  pleasure,  for  the  present,  as  aforesaid,  to  reserve  under 
dominion,  for  the  nse  of  the  said  Indians,  all  the  lands  and  terri- 
tory lying  to  the  westward  of  the  sources  of  the  rivers  which  fall 
into  the  sea,  from  the  west  and  northwest  as  aforesaid :  and  we  do 
hereby  strictly  forbid,  in  pain  of  our  displeasure,  all  our  loving 
subjects  from  making  any  purchases  or  settlements  whatever,  or 
taking  possession  of  any  of  the  lands  above  reserved,  without  our 
special  leave  and  license  for  that  purpose  first  obtained.  And  we 
do  further  strictly  enjoin  and  require  all  persons  whatsoever,  who 
have,  either  wilfully  or  inadvertently,  seated  themselves  upon  any 
lands  within  the  countries  above  described,  or  upon  any  other 
lands  which,  not  having'been  ceded  to,  or  purchased  by  us,  are  still 
reserved  to  the  said  Indians,  as  aforesaid,  forthwith  to  remove 
themselves  from  sucn  settlements/' 

In  July.  1775.  the  first  action  looking  to  a  national,  that  is, 
inter-colonial  management  of  Indian  affairs  was  taken  when  the 
Continental  Congress  resolved  "  that  the  securing  and  preserving 
the  friendship  of  Indian  nations  appears  to  be  a  subject  of  the 
utmost  moment  to  these  colonies,''  and  provided  for  three  Indian 
departments  with  commissions  in  each  "  to  treat  with  the  Indians 
in  their  respective  departments,  in  the  name  and  on  the  behalf  of 
the  United  Colonies,  in  order  to  preserve  peace  and  friendship 
with  the  said  Indian-,  and  to  prevent  their  taking  any  part  in  the 
present  commotions." 


The   Lei.ai.   Status  ok    Im>ia.  b,  297 

In  the  Declaration  of  Independence  the  Indian  question  figures, 
it  being'  charged  against  the  Driti^h  King  that  he  had  endeavored 
'"  to  bring  on  the  inhabitants  of  our  frontiers  the  merciless  Indian 
ages,  whose  known  rule  of  warfare  is  an  undistinguished  de- 
struction of  all  ages,  sexes,  and  conditions." 

In  the  Articles  of  Confederation  the  Congress  of  the  United 
States  was  given  "  the  sole  and  exclusive  right  and  power  .  .  . 
of  regulating  the  trade  and  managing  all  affairs  with  the  Indians, 
ii"T  members  of  any  of  the  States;  provided  that  the  legislative 
right  of  any  State  within  its  own  limits  be  not  infringed  or 
violated." 

The  phrase  "  not  members  of  any  of  the  States,"  here  used,  had 
reference  to  those  Indians  who  had  separated  from  their  tribes  and 
become  mixed  in  the  general  citizen  populations  of  the  several 
States.  It  was  intended  also  to  except  from  national  control  those 
Indians  who,  though  still  in  tribes,  had  become  surrounded  by  the 
whites.  The  Maeption,  indeed,  from  federal  control  of  these 
red  and  surrounded  Indian  tribes,  and  their  absolute  subjec- 
tion to  state  authority  continued  under  the  Constitution  of  1780, 
and  when,  in  £802,  a  general  statute  was  passed  for  the  govern- 
ment of  the  Indians,  it  was  provided  that  "nothing  in  this  act 
shall  be  construed  to  prevent  any  trade  or  intercourse  with  Indians 
living  on  lands  surrounded  by  settlements  of  the  citizens  of  the 
United  States  and  Icing  within  the  ordinary  jurisdiction  of  any  of 
the  individual  States."  Thus  "States  like  Kew  York,  Massachu- 
.  and  Maine  were  permitted  to  continue  to  deal  according  to 
tlu-ir  discretion  with  Indian  tribes  within  their  borders.  "As  a  dry 
matter  of  power,"  observes  Thayer,  "  Congress  might  at  any  time 
have  taken  control  of  them  [for  as  we  shall  see,  the  Constitution1 
gives  to  the  Federal  Government  full  authority  over  the  Indians 
so  long  as  they  remain  distinct  from  the  citizen  bodies  of  the  sev- 
eral State?].  Btrt  while  Congress  was  staying  its  hand,  it  might 
happen  and  has  happened  in  Massachusetts,  that  the  tribal  rela- 
tion had  been  dissolved."  8 

« .4  Pcoplr  Without  [.air.  Two  articles  in  the  Atlantic  Monthly  for  October 
and  November,  1801.     The  author  is  much   indebted  to  these  articles  of  this 


298  United  States  Constitutional  Law. 

§  139.  Federal  Power  over  Indians. 

The  only  direct  references  to  the  Indians  in  the  present  Con- 
stitution are  in  the  provisions  that  "  Indians  not  taxed  "  shall  not 
be  counted  in  determining  the  number  of  representatives  in  Con- 
gress to  which  a  State  is  to  be  entitled,7  and  that  Congress  shall 
have  power  "  to  regulate  commerce  .  .  .  with  the  Indian 
tribes."  8 

The  powers  conferred  upon  the  General  Government  by  the 
Commerce  Clause  will  be  discussed  in  another  chapter.  It  may 
here  be  observed,  however,  that  the  federal  authority  over  com- 
merce with  the  Indians  is  much  broader  than  that  over  commerce 
between  the  States.  As  Prentice  and  Egan  observe :  "  The  pur- 
pose with  which  this  power  [commerce  with  the  Indians]  was 
given  to  Congress  was  not  merely  to  prevent  burdensome,  con- 
flicting or  discriminating  state  legislation,  but  to  prevent  fraud 
and  injustice  upon  the  frontier,  to  protect  an  uncivilized  people 
from  wrongs  by  unscrupulous  whites,  and  to  guard  the  white  popu- 
lation from  the  danger  of  savage  outbreaks.  A  grant  made  with 
such  a  purpose  must  convey  a  different  power  from  one  whose  pur- 
pose was  to  insure  the  freedom  of  commerce.  Congress  has,  in 
the  case  of  Indians,  prohibited  trade  in  certain  articles,  it  has 
limited  the  right  to  trade  to  persons  licensed  under  federal  laws, 
and  in  many  ways  asserted  a  greater  control  than  would  be  possible 
over  other  branches  of  commerce."  ° 

"  Commerce  with  foreign  nations  and  among  several  States  is 
that  commerce  which  involves  transportation  across  state  lines,  and 
is  put  within  federal  control  to  avoid  discriminating,  conflicting, 
and  burdensome  state  legislation.  Commerce  with  the  Indian 
tribes  frequently  involves  no  such  transportation.  It  may  be  car- 
ried on  wholly  within  the  limits  of  a  single  State.  ...  In 
this  case     .     .     .     the  power  of  Congress  is  not  determined  by 

eminent  jurist.  The  reference  to  Massachusetts  has  in  mind  the  law  of  that 
State  enacted  in  1869  wherehy  every  Indian  in  that  State  was  made  a  citizen 
of  the  State. 

7  Art.  I,  Sec.  3. 

8  Art.  I,  Sec.  8,  CI.  3. 

9  The  Commerce  Clause  of  the  Federal  Constitution,  p.  342. 


The  Legal  Status  of  Indians.  299 

the  locality  of  the  traffic,  but  extends  wherever  intercourse  with 
Indian  tribes,  or  with  any  member  of  an  Indian  tribe,  is  found, 
although  it  may  originate  and  end  within  the  limits  of  a  single 
State.  The  jurisdiction  is,  therefore,  personal  rather  than  eco- 
nomic in  its  nature."  10 

In  United  States  v.  Holliday11  the  court  held  that  Congress  had 
the  power  to  forbid  the  sale  of  liquor  to  an  Indian  in  charge  of  an 
agent,  in  a  State  and  outside  of  an  Indian  reservation.  The 
opinion  declared :  "  The  locality  of  the  traffic  [with  Indians]  can 
have  nothing  to  do  with  this  power.  The  right  to  exercise  it  with 
reference  to  any  Indian  tribe,  or  any  person  who  is  a  member  of 
such  tribe,  is  absolute,  without  reference  to  the  locality  of  the 
traffic,  or  the  locality  of  the  tribe,  or  of  the  member  of  the  tribe 
with  whom  it  is  carried  on." 

And  in  United  States  v.  43  Gallons  of  "Whiskey32  was  upheld  the 
power  of  Congress  to  exclude  spirituous  liquors  not  only  from  ex- 
isting Indian  country  but  from  that  which  had  ceased  to  be  so  by 
reason  of  its  cession  to  the  United  States,  but  was  adjacent  to  the 
Indian  settlements.  The  same  regulation,  the  court  declared,  could 
be  provided  by  the  treaty-making  power. 

It  has  been  held  by  the  Supreme  Court  that  the  General  Gov- 
ernment has  an  authority  over  the  Indians  not  springing  from 
these  specific  grants  of  power,  but  from  the  practical  necessity  of 
protecting  the  Indians  and  the  non-existence  of  a  power  to  do  so 
in  the  States.  Thus  in  United  States  v.  Kagama13  the  courts  re- 
fused to  derive  the  power  of  the  United  States  to  enact  a  criminal 
code  for  the  Indians  from  its  power  to  regulate  commerce  with 
them,  but  rested  it  upon  the  broader  basis  that  has  been  mentioned. 
The  Indian  tribes,  the  court  declared  in  that  ease,  "  owe  no 
allegiance  to  the  States  and  receive  from  them  no  protection.  Be- 
cause of  the  local  ill  feeling  the  people  of  the  States  where  they 
are  found  are  often  their  deadliest  enemies.  From  their  very 
weakness  and  helplessness,  so  largely  due  to  the  dealing  of  the  Fed- 

10  Prentice  &  Kjran.  Op,  cit.,  p.  340. 

"3  Wall.  407;  18  L.  ed.  182. 

12  03  U.  S.  188;  23  I*  ed.  846. 

«  118  U.  S.  375;  6  Sup.  Ct.  Rep.  1109;  30  L.  ed.  228. 


300  United  States  Constitutional  Law. 

eral  Government  with  them  and  the  treaties  in  which  it  has  been 
promised,  there  arises  the  duty  of  protection,  and  with  it  the 
power.  This  has  always  been  recognized  by  the  Executive  and  by 
Congress,  and  by  this  court  whenever  the  question  has  arisen. 
.  .  The  power  of  the  General  Government  over  these  rem- 
nants of.  a  race  once  powerful,  now  weak  and  diminished  in 
numbers,  is  necessary  to  their  protection,  as  well  as  to  the  safety 
of  those  among  whom  they  dwell.  It  must  exist  in  that  Govern- 
ment, because  it  has  never  existed  anywhere  else,  because  the 
theatre  of  its  exercise  is  within  the  geographical  limits  of  the 
United  States,  because  it  has  never  been  denied,  and  because  it 
alone  can  enforce  its  laws  on  all  the  tribes." 

§  140.  Congressional  Legislation. 

By  the  Act  of  March  30,  1802,  consolidating,  revising,  and  re- 
enacting  various  prior  laws,  and  entitled  "An  act  to  regulate  trade 
and  intercourse  with  the  Indian  tribes,  and  to  preserve  peace  on 
the  frontiers,"  a  system  of  regulation  was  established  which  re- 
mained largely  in  force  for  many  years.  By  Section  1,  the  bound- 
ary lines  between  the  United  States  and  the  various  Indian 
tribes  according  to  treaties  entered  into  with  them  are  laid  down. 
By  following  sections  it  is  provided  that  no  citizen  of  or  other 
person  resident  in  the  United  States  shall,  under  penalty  of  one 
hundred  dollars,  or  imprisonment  for  six  months,  enter  the  Indian 
territory  without  a  passport;  that  robbery,  larceny,  trespass,  or 
other  crime,  against  the  person  or  property  of  any  friendly  Indian, 
"  which  would  be  punishable,  if  committed  within  the  jurisdiction 
of  any  State  against  a  citizen  of  the  United  States,"  is  to  subject 
the  ofTender  to  fine  and  imprisonment;  that  when  Indian  property 
is  taken  or  destroyed,  the  offender  shall  be  liable  in  a  sum  double 
its  value;  that  no  settlements  by  citizens  or  other  persons  shall  be 
made  on  any  lands  belonging  to  the  Indians ;  that  no  traders  shall 
reside  in  Indian  settlements  without  a  license ;  that  "  no  purchase, 
grant,  lease,  or  other  conveyance  of  lands,  or  of  any  title  of  claim 
thereto,  from  any  Indian,  or  nation,  or  tribe  of  Indians,  within 
the  bounds  of  the  United  States,  shallbe  of  any  validity,  in  law  or 


The   Le(..\l   Statis  of    Indians.  301 

equity,  onload  the  same  be  made  by  treaty  or  convention  entered 
into  pursuant  to  the  Constitution." 

"  In  order  to  promote  civilization  among  the  friendly  Indian 
tribes,,  and  to  secure  the  continuance  of  their  friendship,"  Section 
13  declares  it  lawful  for  the  President  of  the  United  States  "  to 
cause  them  to  be  furnished  with  useful  domestic  animals,  and  im- 
plements of  husbandry,  and  with  goods- or  money,  as  he  may  judge 
proper,  and  to  appoint  such  persons,  from  time  to  time,  as  tempo- 
rary agents,  to  reside  among  the  Indians,  as  he  shall  think  fit: 
provided,  that  the  whole  amount  of  such  presents  and  allowance  to 
such  agents  shall  not  exceed  $15,000  per  annum." 

In  the  event  of  Indians  crossing  the  boundaries  of  their  lands 
into  the  States  and  Territories  of  the  United  States  and  their 
committing  crimes  of  violence  or  stealing  or  destroying  property, 
report  is  to  be  made  to  the  tribes  to  which  the  offenders  belong, 
and,  in  case  the  tribes  refuse  to  make  satisfaction,  the  President 
of  the  United  States  is  to  be  notified  and  he  is  to  take  such  steps 
to  compel  satisfaction  as  may  be  necessary.  In  no  case  are  the 
individuals  who  are  injured  to  attempt  redress  by  private  war- 
fare. The  superior  courts  in  each  territorial  district  and  other 
federal  courts  are  given  full  jurisdiction  to  hear  and  determine 
all  offenses  against  the  act.  Offenders  found  within  any  State  or 
territorial  district  may  be  apprehended.  The  vending  or  dis- 
tributing spirituous  liquors  among  the  Indians  is  forbidden. 
And,  finally,  as  quoted  above,  it  is  declared  that  "nothing  in  this 
act  shall  be  construed  to  prevent  any  trade  or  intercourse  with 
Indians  living  on  lands  surrounded  by  settlements  of  the  citizens 
of  the  United  States,  and  being  within  the  ordinary  jurisdiction 
of  any  of  the  individual  Stares."  u 

From  this  act  it  will  be  seen  that  the  tribal  Indians  are  treated 
as  peoples  not  within  the  citizen  bodies  of  the  States  and  Terri- 
tories, and  that  no  attempt  is  made  to  regulate  anything  but  the 
relations  between  them  and  outsiders*  The  relations  of  indi- 
vidual Indians  to  one  another  and  to  their  respective  tribal  au- 
thorities are  left  untouched. 

"  2  Stat,  at  L.  139. 


302  United  States  Constitutional  Law. 

In  1817  an  act  was  passed  by  Congress  declaring  criminal  the 
committing  of  any  act  within  Indian  territories  under  the  exclu- 
sive jurisdiction  of  the  United  States.  But  offenses  of  Indians 
upon  Indians  were  expressly  excluded. 

From  time  to  time  additional  acts  of  Congress  were  passed  for 
the  regulation  of  the  Indians,  all  of  them  predicated  upon  the  idea 
that  the  Indians  living  upon  Indian  lands15  constitute  a  class 
apart  with  a  peculiar  status,  jurisdiction  over  whom  is  exclu- 
sively in  the  General  Government. 

§  141.  Federal    Jurisdiction    Exclusive.      Cherokee    Nation    v. 
Georgia. 

The    exclusiveness    of    this    federal    jurisdiction,    and,    conse- 
quently, the  lack  of  constitutional  power  of  the  States  in  this 
field  first  came  up  for  serious  discussion  in  the  Supreme  Court 
of  the  United  States  in  the  case  of  •  The  Cherokee  Nation  v. 
Georgia,16  decided  in  1831.     This  case  came  before  the  court  on 
a  motion  on  behalf  of  the  Cherokee  Nation  of  Indians  for  a  sub- 
poena and  for  an  injunction  to  restrain  the  authorities  of  the 
State  of  Georgia  from  executing  the  laws  of  the  State  within  the 
Cherokee  territory  as  designated  by  a  treaty  between  the  United 
States  and  the  Cherokee  Nation.     The  case,  however,  was  not 
decided  on  its  merits,  the  majority  of  the  court,  including  Chief 
Justice  Marshall,  holding  that  the  Cherokee  Nation  was  not  a 
foreign  State  within  the  meaning  of  the  clause  of  the  Constitu- 
tion which  extends  the  federal  judicial  power  over  controversies 
"  between  a  State  or  the  citizens  thereof,  and  foreign  States,  citi- 
zens,  or  subjects,"    and  gives  to   the   Supreme   Courts   original 
jurisdiction  in  cases  in  which  a  State  is  a  party.     It  was  held, 
therefore,  that  the  court  was  without  power  to  entertain  the  suit. 
Upon  this  point,  Marshall  in  his  opinion  said:     "Though  the 
Indians  are  acknowledged  to  have  an  unquestionable,  and  nere- 
is in   Bates  v.   Clark    (95  U.  S.   204;   24  L.  ed.   471)    "Indian  lands"   are 
defined  by  the  Supreme  Court  to  be  "  all  the  country  to  whjch  the  Indian 
title  has  not  been  extinguished   anywhere  within  the   limits  of  the  United 
States." 
w  5  Pet.  1 ;  8  L.  ed.  25. 


The  Legal  Status  of  Indians.  303 

tofore,  unquestioned  right  to  the  lands  they  occupy  until  that 
right  shall  be  extinguished  by  a  voluntary  cession  to  our  govern- 
ment, yet  it  may  be  well  doubted  whether  those  tribes  which  re- 
side within  the  acknowledged  boundaries  of  the  United  States 
can,  with,  strict  accuracy,  be  denominated  foreign  nations.  They 
may,  more  correctly,  perhaps,  be  denominated  domestic  inde- 
pendent nations.  They  occupy  a  territory  to  which  we  assert  a 
title  independent  of  their  will,  which  must  take  effect  in  point  of 
possession  when  their  right  of  possession  ceases.  Meanwhile  they 
are  in  a  state  of  pupilage.  Their  relation  to  the  United  States 
resembles  that  of  a  ward  to  his  guardian.  They  look  to  our  gov- 
ernment for  protection ;  rely  upon  its  kindness  and  its  power ; 
appeal  to  it  for  relief  to  their  wants;  and  address  the  President 
as  their  father.  They  and  their  country  are  considered  by  for- 
eign nations,  as  well  as  by  ourselves,  as  being  so  completely  under 
the  sovereignty  and  dominion  of  the  United  States,  that  any  at- 
tempt to  acquire  their  lands,  or  to  form  a  political  connection 
with  them  would  be  considered  by  all  as  an  invasion  of  our  terri- 
tory, and  an  act  of  hostility.  These  considerations  go  far  to 
support  the  opinion  that  the  framers  of  our  Constitution  had  not 
the  Indian  tribes 'in  view  when  they  opened  the  courts  of  the 
Union  to  controversies  between  a  State  or  the  citizens  thereof, 
and  foreign  States."  n 

n  Justices  Johnson  and  Baldwin  delivered  opinions  concurring  with  that  of 
Marshall.  Justice  Thompson  dissented,  holding  the  Cherokee  Nation  to  con- 
stitute not  only  a  sovereign  State  —  though  under  the  protection  of  the  United 
States  —  hut  a  foreign  State.  He  said:  "They  have  never  been,  by  conquest, 
reduced  to  the  situation  of  subjects  to  any  conqueror,  and  thereby  lost  their 
separate  national  existence  and  the  rights  of  self-government,  and  become 
subject  to  the  laws  of  the  conqueror.  \Yhenever  wars  have  taken  place,  they 
have  been  followed  by  regular  treaties  of  peace,  containing  stipulations  on 
each  side  according  to  existing  circumstances;  the  Indian  nation  always  pre- 
serving its  distinct  and  separate  character.  And  notwithstanding  we  do  not 
recognize  the  right  of  the  Indians  to  transfer  the  absolute  tith?  of  their  lands 
to  any  other  than  ourselves,  the  right  of  occupancy  is  still  admitted  to 
remain  in  them,  accompanied  with  the  right  of  self-government,  according  to 
their  own  usage  and  customs;  and  with  the  competency  to  act  in  a  national 
capacity,  although  placed  under  the  protection  of  the  whites,  and  owing  a 
qualified  subjection  so  far  as  is  requisite  for  public  safety.  But  the  principle 
is  universally  admitted  that  this  occupancy  belongs  to  them  as  a  matter  of 


304  Uxited  States  Coxstitutioxal  Law. 

§  142.  Worcester  v.  Georgia. 

In  the  great  case  of  Worcester  v.  Georgia,38  decided  in  1S32, 
the  question  of  the  political  status  of  the  Indians  again  came 
hefore  the  Supreme  Court  for  discussion  and  the  doctrine  then 
laid  down  has  remained  unquestioned  to  the  present  day.  This 
case,  like  Cherokee  Nation  v.  Georgia,  grew  out  of  the  attempt 
of  Georgia  to  exercise  jurisdiction  over  Indian  territories  situated 
within  the  State's  limits-. 

After  an  historical  review  of  the  dealings  of  England  and  her 
American  colonies,  and  the  dealings  of  the  United  States  under 
the  Constitution  with  the  Indians,  Marshall  says :  "  The  treaties 
and  laws  of  the  United  States  contemplate  the  Indian  territory 
as  completely  separated  from  that  of  the  States ;  and  provide  that 
all  intercourse  with  them  shall  be  .carried  on  exclusively  by  the 
government  of  the  Union.  Is  this  the  rightful  exercise  of  power, 
or  is  it  usurpation?  .  .  .  The  Indian  nations  had  always  been 
considered  as  distinct,  independent  political  communities,  retain- 
ing their  original  natural  rights,  as  the  undisputed  possessors  of 
the  soil  from  time  immemorial,  with  the  single  exception  of  that 
imposed  by  irresistible  power,  which  excluded  them  from  inter- 
course with  any  other  European  potentate  than  the  first  discoverer 
of  the  coast  of  the  particular  region  claimed ;  and  this  was  a  re- 
striction which  those  European  potentates  imposed  on  themselves, 
as  well  as  on  the  Indians.  The  very  term  '  nation  '  so  generally 
applied  to  them,  means,  '  a  people  distinct  from  others.'  The  Con- 
stitution, by  declaring  treaties  already  made,  as  well  as  those  to 
be  made,  to  be  the  supreme  law  of  the  land,  has  adopted  and  sane- 
right,  and  not  by  mere  indulgence.  They  cannot  he  disturbed  in  the  enjoy- 
ment of  it,  without  their  free  consent;  or  unless  a  just  and  necessary  war 
should  sanction  their  dispossession.  In  this  view  of  their  situation,  there  is 
as  full  and  complete  recognition  of  their  sovereignty,  as  if  they  were  the 
absolute  owners  of  the  soil.  The  progress  made  in  civilization  by  the  Cherokee 
Indians  cannot  surely  be  considered  as  in  any  measure  destroying  their 
national  or  foreign  character,  so  long  as  they  are  permitted  to  maintain  a 
separate  and  distinct  government;  it  is  their  political  condition  that  con- 
stitutes their  foreign  character,  and  in  that  sense  must  the  term  foreign  be 
understood  as  used  in  the  Constitution." 

"  6  Pet.  515 ;  8  L.  ed.   483. 


Tin:   Lkual  Status  of   Ixdiaxs.  305 

tioned  the  previous  treaties  with  the  Indian  Xations,  and  conse- 
quently admits  their  rank  among  those  powers  who  are  capable 
of  making  treaties.  The  words  '  treaty '  and  '  nation '  are  words 
of  our  own  language,  selected  in  our  diplomatic  and  legislative 
proceedings,  by  ourselves,  iiaving  each  a  definite  and  well  under- 
stood meaning.  \Ve  have  applied  them  to  Indians,  as  we  have 
applied  them  to  the  other  nations  of  the  earth.  They  are  applied 
to  all  in  the  same  manner. 

"  Georgia,  herself,  has  furnished  conclusive  evidence  that  her 
former  opinions  on  this  subject  concurred  with  those  entertained 
by  her  sister  States,  and  by  the  government  of  the  United  States. 
Various  acts  of  her  legislature  have  been  cited  in  the  argument, 
including  the  contract  of  cession  made  in  the  year  l-8<>2,  all  tend- 
ing to  pro\  e  her  acquiescence  in  the  universal  conviction  that  the 
Indian  nations  possess  a  full  right  to  the  lands  they  occupied 
until  that  right  should  be  extinguished  by  the  United  States,  with 
their  consent ;  that  their  territory  was  separated  from  that  of  any 
State  within  whose  chartered  limits  they  might  reside,  by  a 
boundary  line,  established  by  treaties;  that  within  their  boundary, 
they  possessed  rights  with  which  no  State  could  interfere, 
and  that  the  whole  power  of  regulating  the  intercourse  with 
them  was  vested  in  the  United  States.  .  .  .  The  Cherokee 
Xation,  then,  is  a  distinct  community,  occupying  its  own  terri- 
tory, with  boundaries  accurately  described,  in  which  the  laws  of 
Georgia  can  have  no  force,  and  which  the  citizens  of  Georgia  have 
no  right  to  enter  but  with  the  assent  of  the  Cherokees  themselves 
or  in  conformity  with  treaties  and  with  the  acts  of  Congress.  The 
whole  iiiterc<  ur-e  between  the  United  States  and  this  nation  is, 
by  our  Constitution  and  laws,  vested  in  the  government  of  the 
United  States.  The  act  of  the  State  of  Georgia  under  which  the 
plaintiff  in  error  was  prosecuted  is  consequently  void,  and  the 
judgment  a  nullity."  10 

win  the  Dri-d  S,  a  0M&  Taney  daaerihn  the  political  status  of  the  Indians 
as  follows:  "it  i>  true,"  he  says.  "  that  they  formed  no  part  of  the  local 
communities  and  never  amalgamated  with  them  in  social  connections  or  in 
government.  But  although  they  were  uncivilized,  they  were  yet  a  free  and 
independent  people,  associated  together  in  nations  or  trihes,  and  governed  by 

20 


306  United  States  Constitutional  Law. 

The  absolute  power  of  the  Federal  Government  over  the  tribal 
Indians,  derived  not  only  from  the  Commerce  Clause  of  the  Con- 
stitution, but  from  the  obvious  necessities  of  the  case,  has  carried 
with  it,  as  we  have  seen  in  the  Cherokee  Xation  v.  Georgia,  and 
Worcester  v.  Georgia  cases,  an  implied  prohibition  upon  the  State 
to  exercise  authority  over  them. 

In  the  Kansas  Indians,20  decided  in  1867,  the  court,  denying 
to  a  State  the  constitutional  power  to  tax  the  property  of  Indians 
not  incorporated  into  its  citizen  body,  say :  "  If  the  tribal  organi- 
zation of  the  Shawnees  [the  Indians  in  question]  is  preserved 
intact,  and  recognized  by  the  political  department  of  the  Govern- 
ment as  existing  they  are  a  people  distinct  from  the  others,  capable 
of  making  treaties,  separated  from  the  jurisdiction  of  Kansas, 
and  to  be  governed  exclusively  by  the  Government  of  the  Union. 
If  under  the  control  of  Congress  from  necessity  there  can  be  no 

their  own  laws.  Many  of  these  political  communities  were  situated  in  ter- 
ritory to  which  the  white  race  claimed  the  ultimate  right  of  dominion.  But 
that  claim  was  acknowledged  to  be  subject  to  the  right  of  the  Indians  to 
occupy  it  as  long  as  they  thought  proper,  and  neither  the  English  nor 
colonial  governments  claimed  or  exercised  any  dominion  over  the  tribe  or 
nation  by  whom  it  was  occupied,  nor  claimed  the  right  to  the  possession  of 
the  territory,  until  the  tribe  or  nation  consented  to  cede  it.  These  Indian 
governments  were  regarded  and  treated  as  foreign  governments,  as  much  so  as 
if  an  ocean  had  separated  the  red  man  from  the  white ;  and  their  freedom  has 
constantly  been  acknowledged,  from  the  time  of  the  first  emigration  to  the 
English  colonies  to  the  present  day,  by  the  different  governments  which  suc- 
ceeded each  other.  Treaties  have  been  negotiated  with  them,  and  their 
alliance  sought  for  in  war ;  and  the  people  who  compose  these  Indian  political 
communities  have  always  been  treated  as  foreigners  not  living  under  our 
government.  It  is  true  that  the  course  of  events  has  brought  the  Indian 
tribes  within  the  limits  of  the  United  States  under  subjection  to  the  white 
race;  and  it  has  been  found  necessary,  for  their  sake  as  well  as  our  own,  to 
regard  them  as  in  a  state  of  pupilage,  and  to  legislate  to  a  certain  extent 
over  them  and  the  territory  they  occupy.  But  they  may,  without  doubt,  like 
the  subjects  of  any  other  foreign  government,  be  naturalized  by  the  authority 
of  Congress,  and  become  citizens  of  a  State,  and  of  the  United  States ;  and  if 
an  individual  should  leave  his  nation  or  tribe,  and  take  up  his  abode  among 
the  white  population,  he  would  be  entitled  to  all  the  rights  and  privileges 
which  would  belong  to  an  emigrant  from  any  other  foreign  people." 
205  Wall.  737;  18  L.  ed.  667. 


The  Legal  Status  of  Indians.  307 

divided  authority."  The  doctrine  in  this  case  was  affirmed  by 
the  court  at  the  same  term  in  the  case  of  the  New  York  Indians.21 

It  has  been  held,  however,  that  the  state  courts  have  jurisdic- 
tion over  offenses  committed  by  Indians  off  the  reservation  and 
within  the  State's  territorial  limits.22 

Because  of  the  peculiar  ^wast-independent  status  ascribed  to 
the  Indian  tribes,  and  the  exclusion  of  their  individual  members 
from  the  general  citizen  body  of  the  United  States,  the  political 
departments  of  the  General  Government  in  the  control  of  them 
have  not  been  held  bound  by  the  constitutional  limitations  which 
apply  to  the  citizens  of  the  United  States.23 

§  143.  Naturalization  of  Indians  by  Statute. 

In  1884,  in  the  case  of  Elk  v.  Wilkins,24  the  question  arose 
whether  an  Indian,  born  a  member  of  one  of  the  Indian  tribes 
within  the  United  States,  became  a  citizen  of  the  United  States 
under  the  Fourteenth  Amendment,  by  reason  of  his  birth  within 
the  United  States,  and  his  afterward  voluntarily  separating  him- 
self from  his  tribe  and  taking  up  a.  residence  among  white  citi- 
zens. In  declaring  that  he  did  not  and  could  not  thus  become  a 
citizen,  the  court  said:  "The  alien  and  dependent  condition  of 
the  members  of  the  Indian  tribes  could  not  be  put  off  at  their 
own  will,  without  the  action  or  assent  of  the  United  States. 
They  were  never  deemed  citizens  of  the  United  States,  except 
under  explicit  provisions  of  treaty  or  statute  to  that  effect,  either 
declaring  a  certain  tribe,  or  such  members  of  it  as  chose  to  re- 
main behind  on  the  removal  of  the  tribe  westward,  to  be  citizens, 
or  authorizing  individuals  of  particular  tribes  to  become  citizens 
on  application  to  a  court  of  the  United  States  for  naturalization, 
and  satisfactory  proof  of  fitness  for  civilized  life.  .  .  .  Indians 
born  within  the  territorial  limits  of  the  United  States,  members 

2i  5  Wall.  761  ;  18  L.  ed.  708.  See  post,  p.  314,  the  case  of  United  States 
v.  Rickert,  188  U.  S.  432;  23  Sup.  Ct.  Rep.  478;  47  L.  ed.  532. 

22  People  v.  Antonio,  27  Cal.  404;  Hunt  v.  State,  4  Kan.  60;  United  States 
v.  Yellow  Sun,  1  Dill.  271. 

23  For  a  discussion  of  the  reasonableness  of  this  doctrine  based  upon  the 
necessities  of  the  case,  see  article  in  the  American  Laic  Revierc,  XV,  21, 
entitled  "  The  Legal   Position  of  tbe  Indians."  by  Ceorge  F.  Canfield. 

2*  112  U.  S.  94;  5  Sup.  Ct.  Rep.  41;  28  L.  ed.  643. 


308  United  States  Constitutional  Law. 

of,  and  owing  immediate  allegiance  to  one  of  tlie  Indian  tribes 
(an  alien,  though  dependent  power),  although,  in  a  geographical 
sense  horn  in  the  United  State*,  are  no  more  '  born  in  the  United 
States  and  subject  to  the  jurisdiction  thereof  within  the  mean- 
ing of  the  first  section  of  the  ^fourteenth  Amendment,  than  the 
children  of  subjects  of  any  foreign  .government  born  within  the 
domain  of  that  .government,  or  the  children,  born  within  the 
United  States,  of  ambassadors  or  other  public  ministers  of  foreign 
nations.  .  .  .  Such  Indians,  then,  not  being  citizens  by  birth, 
can  only  become  citizens  in  the  second  way  mentioned  in  the 
Fourteenth  Amendment,  by  being  naturalized  in  the  United 
States  by  or  under  some  treaty  or  statute,"  25 

§  J44.  Disappearance  of  Indian  Tribal  Autonomy. 

Since  the  decision  of  the  Supreme  Court  in  Elk  v.  Wilkins  a 
number  of  acts  of  Congress  have  been  passed  which  have  had  the 
effect  of  destroying,  to  a  very  considerable  extent,  the  autonomous 
tribal  governments  of  the  Indians  and  of  subjecting  them  to  the 
immediate  legislative  control  of  Congress  instead  of  to  the  treaty- 
making  power.  The  way  had  been  oj>ened  to  this  change  in  a 
"rider"  attached  to  an  appropriation  bill  in  1871  which  pro- 
vided, as  has  been  earlier  stated,  that  "  Xo  Indian  nation  or  tribe 
"within  the  territory  of  the  United  States  shall  be  acknowledged 
or  recognized  as  an  independent  nation,  tribe  or  power  with  whom 
the  United  States  may  contract  by  treaty."  26 

By  an  act  passed  March  3,  1885,  the  federal  courts  were  for 
the  first  time  given  considerable  jurisdiction  over  crimes  com- 
mitted within  the  reservations  by  Indians  upon  Indians.     Section 

*5  Justices  Wood  and  Harlan  dissented. 

** Notwithstanding  this  act.  Congress  has  continued  to  deal  with  the  Indians. 
in  many  cases,  by  agreements.  That  is,  their  formal  consent  has  been  required 
as  a  condition  precedent  to  putting  into  force  the  legislation  proposed.  Some 
question  as  to  the  constitutionality  of  this  has  been  raised,  it  being  alleged 
that  the  practice  amounts  to  a  delegation  by  Congress  of  its  legislative  power 
hi  the  premises.  It  would  seem,  however,  that  the  objection  is  not  of  great 
weight,  as  it  is  conceded  that  a  legislative  body  may  make  a  statute  condi- 
tional upon  the  consent  of  those  to  whom  it  applies,  provided  such  assent 
affects  merely  the  expediency  of  the  statute  (Cooley,  Const.  Lim.,  7th  ed., 
p.  164). 


The  Legal  Status  of  Indians.  309 

9  of  this  law  provides :  "  That  immediately  upon  and  after  the 
date  of  the  passing  of  this  Act  all  Indians  committing  against 
the  person  or  property  of  another  Indian  or  other  person  any  of 
the  following  crimes  ;  namely,  murder,  manslaughter,  rape,  assault 
with  intent  to  kill,  arson,  burglary,  and  larceny,  within  any  Ter- 
ritory of  the  United  Stales,  and  either  within  or  without  the 
Indian  Reservation,  shall  be  subject  therefor  to  the  laws  of  said. 
territory  relating  to  said  crimes,  and  shall  fee  tried  therefor  in  tho 
same  courts  and  in  the  same  manner,  and  shall  be  subject  to  the 
same  penalties,  as  are  all  other  persons  charged  with  the  commis- 
sion of  said  crimes  respectively;  and  said  courts  are  hereby  given 
jurisdiction  in  all  such  cases;  and  all  such  Indians  committing 
any  of  the  above  described  crimes  against  the  person  or  property 
of  another  Indian  or  other  person,  within  the  boundaries  of  any 
State  of  the  United  States,  and  within  the  limits  of  any  Indian- 
reservation,  shall  be  subject  to  the  same  laws,  tried  in  the  same 
courts  and  in  the  same  manner,  and  subject  to  the  same  penalties, 
as  are  all  other  persons  committing  any  of  the  above  crimea- 
within  the  exclusive  jurisdiction  of  the  United  States." 

The  constitutionality  of  this  act  was  attacked  upon  the  ground 
that  it  was  not  within  the  legislative  power  of.  Congress  thus  to 
interfere  with  the  internal  legal  affairs  of  Indians  still  maintain- 
ing, tribal  governments.  The  Supreme  Court  held,  however,  in 
United  States  v.  Kagania,27  that  whatever  political  and  legal  free- 
dom was  enjoyed  by  the  Indians  was  by  way  of  permission  or 
cession  from  the  Federal  Government,  and  was,  therefore,  subject 
to  curtailment  or  complete  withdrawal  by  that  power.  a  These 
Indian  tribes/'  ir  declared,  "are  the  wnrds  of  the  Xatbm.  They 
are  communities  dependent  on  the  United  States,  dependent 
largely  for  their  daily  food,  dependent  for  their  political,  rights. 
They  owe  no  allegiance  to  the  States,  and  receive  from  them  no 
protection." 

To  this  decision  the  objection  was  urged,  and,  it  would  seem, 
with  considerable  force,  that  since  the  Indians  are  no  longer  per- 
mitted to  enjoy  tribal  autonomy,  and  are  no  longer  treated  by  the 

27  118  U.  S:  375;  6  Sup.  Ct.  Rep.  1109;  30  L.  ed.  228. 


310  United  States  Constitutional  Law. 

Federal  Government  as  independent  communities  which  are  to 
be  dealt  with  by  treaties  instead  of  statutes,  there  disappears  the 
constitutional  justification  for  denying  to  the  States  the  control 
of  such  of  them  as  live  within  their  territorial  limits.  To  this 
the  Supreme  Court  had  no  better  answer  to  give  than  that  of 
expediency  —  always  a  poor,  if  not  an  absolutely  invalid  argu- 
ment. "  The  power  of  the  General  Government  over  these  rem- 
nants of  a  race  once  powerful,  now  weak  and  diminished  in  num- 
bers," it  said,  "  is  necessary  to  their  protection,  as  well  as  to  the 
safety  of  those  among  whom  they  dwell."  Upon  this  argument 
the  exclusive  jurisdiction  of  the  Federal  Government  over  the 
negroes  could,  in  a  degree  at  least,  be  justified. 

At  various  times  during  past  years,  Congress  has  declared  as 
to  particular  Indian  tribes,  that  their  lands  should  be  divided 
and  held  in  severalty  by  their  respective  members,  and  that,  there- 
upon, such  Indians  should  become  citizens  of  the  United  States, 
and  pass  immediately  from  the  exclusive  jurisdiction  of  the  Fed- 
eral Government  to  that  of  the  States  in  which  they  reside.  By 
the  General  Land  in  Severalty  Law,  known  as  the  "  Dawes  Act," 
approved  February  8,  1887,  the  President  was  given  the  power 
to  apply  this  process  to  practically  every  Indian  reservation  in 
the  country.  The  peculiarity  of  these  acts  is,  it  will  be  observed, 
that  it  makes  citizens  of  Indians  against  their  will.  The  action 
is  taken  at  the  discretion  of  the  President  and  citizenship  is  the 
result28 

28  The  following  are  the  provisions  of  this  act  upon  the  points  under  dis- 
cussion : 

"  That  in  all  cases  where  any  tribe  or  band  of  Indians  has  been,  or  shall 
hereafter  be,  located  upon  any  reservation  created  for  their  use,  either  by 
treaty  stipulation  or  by  virtue  of  an  act  of  Congress  or  executive  order  setting 
apart  the  same  for  their  use,  the  President  of  the  United  States  be,  and  he 
hereby  is,  authorized,  whenever  in  his  opinion  any  reservation  or  any  part 
thereof  of  such  Indians  is  advantageous  for  agricultural  and  grazing  purposes, 
to  cause  said  reservation,  or  any  part  thereof,  to  be  surveyed,  or  resurveyed 
if  necessary,  and  to  allot  the  lands  in  said  reservation  in  severalty  to  any 
Indian  located  thereon  in  quantities  as  follows: 

"Sec.  5.  That  upon  the  approval  of  the  allotments  provided  for  in  this  act 
by  the  Secretary  of  the  Interior,  he  shall  cause  patents  to  issue  therefor  in 
the  name  of  the   allottees,  which  patents  shall  be   of  the  legal   effect,  and 


The  Legal  Status  of  Indians.  311 

The  declaration  of  1871,  and  the  acts  of  1885  and  1887,  and 
the  sustaining  of  their  constitutionality  by  the  Supreme  Court, 
illustrate  the  legal  power  of  the  United  States  to  govern  the 
tribal  Indians  at  will  as  bodies  of  individuals  completely  subject 
to  its  legal  control,  despite  the  status  of  ^uasi-independence  that 
has  been  accorded  them.  This  absolute  power  of  control  has  been 
conspicuously  exhibited  in  more  recent  legislation  which  has  been 
enacted  in  pursuance  of  a  policy  decided  upon  to  abolish,  as 
rapidly  as  possible,  the  tribal  relations  and  governments,  to  ex- 
tinguish the  Indian  titles  to  lands,  and  to  incorporate  the  indi- 
vidual Indians  in  the  general  citizen  bodies  of  the  States  and 
Territories  in  which  they  live. 

declare  that  the  United  States  does  and  will  bold  the  land  thus  allotted  for 
the  period  of  twenty-five  years,  in  trust  for  the  sole  use  and  benefit  of  the 
Indian  to  whom  such  allotment  shall  have  been  made,  or,  in  case  of  his 
decease,  of  his  heirs,  according  to  the  laws  of  the  State  or  Territory  where 
such  land  is  located,  and  that  at  the  expiration  of  said  period  the  United 
States  will  convey  the  same  by  patent  to  said  Indian,  or  his  heirs  as  afore- 
said, in  fee,  discharged  of  said  trust  and  free  of  all  charge  or  incumbrance 
whatsoever:  Provided,  That  the  President  of  the  United  States  may  in  any 
case  in  his  discretion  extend  the  period.-     . 

"  Sec.  6.  That  upon  the  completion  of  said  allotments  and  the  patenting  of 
the  lands  to  said  allottees,  each  and  every  member  of  the  respective  bands  or 
tribes  of  Indians  to  whom  allotments  have  been  made  shall  have  the  benefit 
of  and  be  subject  to  the  laws,  both  civil  and  criminal,  of  the  State  or  Terri- 
tory, in  which  they  may  reside;  and  no  Territory  shall  pass  or  enforce  any 
law  denying  any  such  Indian  within  its  jurisdiction  the  equal  protection  of 
the  law.  And  every  Indian  born  within  the  territorial  limits  of  the  United 
States  to  whom  allotments  shall  have  been  made  under  the  provisions  of  this 
act,  or  under  law  or  treaty,  and  every  Indian  born  within  the  territorial 
limits  of  the  United  States  who  has  voluntarily  taken  up,  within  said  limits, 
his  residence  separate  and  apart  from  any  tribe  of  Indians  therein,  and  has 
adopted  the  habits  of  civilized  life,  is  hereby  declared  to  be  a  citizen  of  the 
United  States,  and  is  entitled  to* all  the  rights,  privileges,  and  immunities  ot 
such  citi/ens  whether  said  Indian  has  been  or  not,  by  birth  or  otherwise,  a 
member  of  any  tribe  of  Indians  within  the  territorial  limits  of  the  United 
States  without  in  any  manner  impairing  or  otherwise  affecting  the  right  of 
any  such  Indian  to  tribal  or  other  property. 

"  Sec.  8.  That  the  provision  of  this  act  shall  not  extend  to  the  territory 
occupied  by  the  Cherokees,  Creeks,  Choctaws,  Chickasaws.  Seminoles.  and 
Osage.  Miamies  and  Peorias.  and  Sacs  and  Foxes,  in  the  Indian  Territory, 
nor  to  any  of  the  reservations  of  the  Senaca  Nation  of  New  York  Indians  in 
the  State  of  New  York,  nor  to  that  strip  of  territory  in  the  State  of  Nebraska 


312  United  States  Constitutional  Law. 

The  new  policy  was  based  upon  the  facts  found  by  the  so-called 
"  Dawes-  Commission,"  which  was  created  by  the  acts  of  March  3, 
1893,^  and  March  2,  1895.30 

The  constitutionality  of  thus  summarily  dealing  with  the  In- 
dians by  statute,  has  been  questioned  in  a  number  of  cases  before 
the  Supreme  Court,  but  has  always  been  sustained. 

In  Stephens  v.  Cherokee  Xation,31  decided  in  1&99,  it  was  held 
that  because  such  legislation  might  be  in  violation  of  previous 
treaties  with  the  Cherokees  was  no  ground  for  holding  it  invalid.32 
As  to  the  general  legislative  powers  of  Congress  over  the  Indians, 
the  court  said :  "  We  need  not  review  the  decisions  on  the  subject, 
as  they  are  sufficiently  referred  to  by  Mr.  Justice  Harlan  in 
Cherokee  Xation  v.  Southern  Kan.  Ky.  Co.  (135  U.  S.  611;  10 
Sup.  Ct.  Eep.  965;  31  L.  ed.  295),  from  whose  opinion  we  quote 
as  follows :  '  The  proposition  that  the  Cherokee  Xation  is  sover- 
eign in  the  sense  that  the  United  States  is  sovereign,  or  in  the 
sense  that  the  several  States-  are  sovereign,  and  that  that  nation 

adjoining  the  Sioux  Xation  on  the  south  added  by  executive  order."  (Kev. 
Stat.,  §  2316.) 

The  "  Dawe3  "  Act  of  1887  also  provides  for  allotments  of  land  and  citizen- 
ship to  Indians  who  may  wish  to  settle  upon  the  public  lands  of  the  United 
States.  It  also  declares  that  all  Indians  forsaking  their  tribal  life  and 
adopting  the  habits  of  civilized  life  shall  become  citizens.  Without  this 
express  statutory  provision,  as  was  decided  in  Elk  v.  Wilkina,  citizenship 
could  not  thus  be  obtained. 

The  peculiar  status  of  those  Indians  who  have  not  become  citizens  is  illus- 
trated in  the  form  of  a  letter  of  protection  issued  in  lieu  of  a  passport,  to 
those  traveling  abroad.  The  following  is  a  letter  issued  by  our  consul  at 
Odessa,  the  form  of  which  has  been  approved  by  the  State  Department: 

"  To  whom  it  may  concern : 

"  The  bearer  of  this  document  is  a  North  American  Indian  whose  name  is 
Hampa.  This  Indian  is  a  ward  of  the  United  States,  and  is  entitled  to  the 
protection  of  its  consular  and  other  officials.  He  is  not,  however,  entitled  to 
a  passport,  as  he  is  not  a  citizen  of  the  United  States.  This  consulate  has 
the  honor  to  request  the  Russian  authorities  to  grant  Hampa  all  necessary 
protection  during  his  stay  in  Russia,  and  to  grant  him  permission  to  depart 
when  he  requires  it." 

29  27  Stat,  at  L.  c.  209. 

30  28  Stat,  at  L.  c.  189. 

si  174  U.  S.  445;  19  Sup.  Ct.  Rep.  722;  43  L.  ed.  1041. 

32  Quoting  Thomas  v.  Gay,  169  U.  S.  264;  18  Sup.  Ct  Rep.  340;  42  L.  ed. 
740. 


The  Legal  Status  of   India:  313 

alone  can  exercise  the  power  of  eminent  domain  within  its  limits, 
finds  no  support  in  the  numerous  treaties  with  the  Cherokee 
Indians,  or  in  the  decisions  of  this  court,  or  in  the  acts  of  Con- 
gress defining  the  relations  of  that  people  with  the  United  States.' 
.  .  .  It  is  true,  as  declared  in  Worcester  v.  Georgia  (G  Pet; 
515 ;  8  L.  ed.  483),  that  the  treaties  and  laws  of  the  United  States 
contemplate  the  Indian  Territory  as  completely  separated  from 
the  States  and  the  Cherokee  Nation  as  a  distinct  community,  and 
(in  the  language  of  Mr.  Justice  McLean  in  the  same  case,  p.  5S3), 
that  '  in  the  executive,  legislative,  and  judical  branches  of  our 
government  we  have  admitted,  by  the  most  solemn  sanction,  the 
existence  of  the  Indians  as  a  separate  and  distinct  people,  and  as 
being  vested  with  rights  which  constitute  them  a  State,  or  a  sepa- 
rate community.'  But  that  falls  far  short  of  saying  that  they 
are  a  sovereign  State,  with  no  superior  within  the  limits  of  its 
territory." 

In  Cherokee  Nation  v.  Hitchcock,33  decided  in  1902,  the  pro- 
visions of  the  Act  of  1893,  authorizing  the  Secretary  of  the  In- 
terior to  prescribe  regulations  for  the  leasing  of  mineral  lands 
in  the  tribal  districts  of  the  plaintiffs  for  the  purpose  of  making 
these  lands  productive  and  of  securing  therefrom  an  income  for 
the  benefit  of  the  tribe,  was  held  valid. 

In  Lone  Wolf  v.  Hitchcock,"*  decided  in  1903,  was  questioned 
the  constitutionality  of  an  act  of  Congress-  of  1900  providing  for 
allotment  in  severalty  of  lands  held  in  common  within  certain 
Indian  reservations  and  purporting  to  give  an  adequate  considera- 
tion for  the  surplus  lands  not  allotted  or  reserved  for  their  benefit. 
In  its  opinion,  upholding  the  validity  of  the  act,  notwithstanding 
its  alleged  incongruity  with  previous  treaties,  the  court  say: 
"  Plenary  authority  over  the  tribal  relations  of  the  Indians  has 
been  exercise*  1  by  Congress  from  the  beginning,  and  the  power 
has  always  been  deemed  a  political  one,  and  not  subject  to  be  con- 
trolled by  the  judicial  department  of  the  government.      .     . 

The  power  exist-  to  abrogate  the  provisions  of  an  Indian  treaty, 
i ■ 

33  187  U.  S.  294:  23  Sup.  Ct.  Rep.  115;  47  L.  ed.  183. 

34  137  XL  S.  553;  23  Sup.  Ct.  Rep.  210;  47  L.  ed.  299. 


314  United  States  Constitutional  Law. 

though  presumably  such  power  will  be  exercised  only  when  cir- 
cumstances arise  which  will  not  only  justify  the  government  in 
disregarding  the  stipulations  of  the  treaty,  but  may  demand,  in 
the  interest  of  the  country  and  the  Indians  themselves,  that  it 
should  do  so." 

/  In  United  States  v.  Rickert,35  decided  in  1903,  it  was  held  that 
lands  allotted  in  severalty  to  Indians  under  the  Act  of  1887,  and 
held  in  trust  for  them  by  the  United  States  for  twenty-five  years, 
are  not  taxable  by  the  State  in  which  situated,  nor  are  the  im- 
provements upon  them,  or  the  cattle  or  other  property  furnished 
the  allottees  by  the  United  States.  The  court  in  its  opinion  say: 
"  To  tax  these  lands  is  to  tax  an  instrumentality  employed  by  the 
United  States  for  the  benefit  and  control  of  this  dependent  race, 
and  to  accomplish  beneficent  objects  with  reference  to  a  race  of 
which  this  court  has  said  that  '  from  their  very  weakness  and 
helplessness,  so  largely  due  to  the  course  of  dealing  of  the  Federal 
Government  with  them  and  the  treaties  in  which  it  has  been 
promised,  there  arises  the  duty  of  protection,  and  with  it  the 
power.  This  has  always  been  recognized  by  the  Executive  and 
by  Congress,  and  by  this  court,  whenever  the  question  has  arisen.' 
United  States  v.  Kagama,  118  U.  S.  375 ;  6  Sup.  Ct.  Rep.  1109 ; 
30  L.  ed.  228." 

With  reference  to  the  permanent  improvements  on  the  lands  in 
question,  the  court  say:  "Looking  at  the  object  to  be  accom- 
plished by  allotting  Indian  lands  in  severalty,  it  is  evident  that 
Congress  expected  that  the  lands  so  allotted  would  be  improved 
and  cultivated  by  the  allottee.  But  that  object  would  be  defeated 
if  the  improvements  could  be  assessed  and  sold  for  taxes.  The 
improvements  to  which  the  question  refers  were  of  a  permanent 
kind.  While  the  title  to  the  land  remained  in  the  United  States, 
the  permanent  improvements  could  no  more  be  sold  for  local 
taxes  than  could  the  land  to  which  they  belonged.  Every  reason 
that  can  be  urged  to  show  that  the  land  was  not  subject  to  local 
taxation  applies  to  the  assessment  and  taxation  of  the  permanent 
improvements.  It  is  true  that  the  statutes  of  South  Dakota,  for 
the  purpose  of  taxation,  classify  '  all  improvements  made  by  per- 

85  188  U.  S.  432;  23  Sup.  Ct.  Rep.  478;  47  L.  ed.  532. 


The  Legal  Status  of  Indians.  315 

sons  upon  lands  held  by  them  under  the  laws  of  the  United 
States,'  as  personal  property.  But  that  classification  cannot  apply 
to  permanent  improvements  upon  lands  allotted  to  and  occupied 
by  Indians,  the  title  to  which  remains  with  the  United  States, 
the  occupants  still  being  wards  of  the  nation,  and  as  such  under 
its  complete  authority  and  protection.  The  fact  remains  that  the 
improvements  here  in  question  are  essentially  a  part  of  the  lands, 
and  their  use  by  the  Indians  is  necessary  to  effectuate  the  policy 
of  the  United  States." 

With  reference  to  the  personal  property  provided  the  allottees, 
the  court  declare:  "  The  answer  to  this  question  is  indicated  by 
what  has  been  said  in  reference  to  the  assessment  and  taxation 
of  the  land  and  in  the  permanent  improvements  thereon.  The 
personal  property  in  question  was  purchased  with  the  money  of 
the  government,  and  was  furnished  to  the  Indians  in  order  to 
maintain  them  on  the  land  allotted  during  the  period  of  the  trust 
estate,  and  to  induce  them  to  adopt  the  habits  of  civilized  life. 
It  was,  in  fact,  the  property  of  the  United  States,  and  was  put 
into  the  hands  of  the  Indians  to  be  used  in  execution  of  the  pur- 
pose of  the  government  in  reference  to  them.  The  assessment 
and  taxation  of  the  personal  property  would  necessarily  have  the 
effect  to  defeat  that  purpose." 

Finally,  with  reference  to  the  question  whether  the  United 
States  had  a  sufficient  interest  in  the  matter  to  entitle  it  to  bring 
suit,  the  opinion  declares:  "In  view  of  the  relation  of  the 
United  States  to  the  real  and  personal  property  in  question,  as 
well  as  to  these  dependent  Indians  still  under  national  control, 
and  in  view  of  the  injurious  effect  of  the  assessment  and  taxation 
complained  of  upon  the  plans  of  the  government  with  reference 
to  the  Indians  it  is  clear  that  the  United  States  is  entitled  to 
maintain  this  suit.  Xo  argument  to  establish  that  proposition  is 
necessary." 

In  Fe  Iloff,36  decided  in  1905,  however,  the  court  held  that  an 
Indian  to  whom  an  allotment  under  the  Act  of  18S7  had  been 
made,  and  who,  by  that  act,  had  been  granted  the  privilege  of 
citizen. -hip.  and  given  the  benefit  of,  and  subjected  to,   tho  civil 

36  197  U.  S.  488;  25  Sup.  Ct.  Rep.  506;  49  L.-ed.  848. 


316  United  States  Constitutional  Law. 

and  criminal  laws  of-  the  State  in  which  he  resided,  was  a  mem- 
ber of  the  citizen  body  of  that  State,  and.  no  longer  under  such 
federal  control  a&  to  empower  Congress,  under  the  Commerce 
Clause,  to  penalize  the  sale  within  the  State  of  liquor  to  him. "r 

37  After  a  review  of  the  recent  legislation  of  Congress  dealing  with  the 
Indian,  and  a  consideration  of  the  police  powers  reserved  to  the  States,  the 
court  say:  "But  it  contended  that,  although  the  United  States  may  not 
punish  under  the  police  power  the  sale  of  liquor  within  a  State  by  one  citizen 
to  another,  it  has  power  to  punish  such  sale  if  the  purchaser  is  an  Indian. 
And  the  power  to  do  this  is  traced  to  that  clause  of  §  8,  Art.  1,  of  the  Con- 
stitution, which  empowers  Congress  'to  regulate  commerce  with  foreign  nations, 
and  among  the  several  States,  and  with  the  Indian  tribes.'  It  is  said  that 
commerce  with  the  Indian  tribes  includes  commerce  with  the  members  thereof, 
and  Congress,  having  power  to  regulate  commerce  between  the  white  men  and 
the  Indians,  continues  to  retain  that  power,  although  it  has  provided  that  the 
Indian  shall  have  the  benefit  of  and  be  subject  to  the  civil  and  criminal  laws 
of  the  State,  and  shall  be  a  citizen  of  the  United  States,  and  therefore  a 
citizen  of  the  State.  But  the  logic  of  this  argument  implies  that  the  United 
States  can  never  release  itself  from  the  obligations  of  guardianship;  that,  so 
long  as  an  individual  is  an  Indian  by  descent.  Congress,  although  it  may 
have  granted  all  the  rights  and  privileges  of  national,  and  therefore  =tate, 
citizenship,  the  benefits  and  burdens  of  the  laws  of  the  State,  may  at  anv' 
time  repudiate  this  action  and  reassume  its  guardianship,  and  prevent  the 
Indian  from  enjoying  the  benefit  of  the  laws  of  the  State  and  release  him 
from  obligations  of  obedience  thereto.  Can  it  be  that  because  one  has  Indian, 
and  only  Indian,  blood  in  his  veins,  he  is  to  be  forever  one  of  a  special  class 
over  whom  the  General  Government  may,  in  its  discretion,  assume  the  rights 
of  guardianship  which  it  has  once  abandoned,  and  this  whether  the  State  or 
the  individual  himself  consents?  We  think  the  reach  to  which  this  argument 
goes  demonstrates  that  it  is  unsound.  But  it  is  said  that  the  government 
has  provided  that  the  Indian's  title  shall  not  be  alienated  or  encumbered  for 
twenty-five  years,  and  has  also  stipulated  that  the  grant  of  citizenship  shall 
not  deprive  the  Indian  of  his  interest  in  tribal  or  other  property;  but  these 
are  mere  property  rights,  and  do  not  affect  the  civil  or  political  status  of  the 
allottees.  .  .  .  But  the  fact  that  property  is  held  subject  to  a  condition 
against  alienation  does  not  affect  the  civil  or  political  status  of  the  holder  of 
the  title.  Many  a  tract  of  land  is  conveyed  with  conditions  subsequent. 
But  it  is  unnecessary  to  pursue  this  discussion  further.  We  are  of 
the  opinion  that,  when  the  United  States  grants  the  privileges  of  citizenship 
to  an  Indian,  gives  to  him  the  benefit  of,  and  requires  him  to  be  subject  to, 
the  laws,  both  civil  and  criminal,  of  the  State,  it  places  him  outside  of  police 
regulations  on  the  part  of  Congress;  that  the  emancipation  from  federal  con- 
trol is  not  affected  by  the  fact  that  the  lands  it  has  granted  to  the  Indian 
are  granted  subject  to  a  condition  against  alienation  and  encumbrance,  or  the 
further  fact  that  it  guarantees  to  him  an  interest  in  tribal  or  other  property." 


Tire  Legal  Status  oe  Ixdiaxs.  SIT 

The  last  acts  of  Congress  in  this  history  of  its  purpose  to  assimi- 
late the  tribal  Indians  into  the  general  citizen  body  of  the  nation 
are  two  statutes  enacted  in  1906. 

By  an  act  approved  April  20,  1006,  provision  is  made  ior  the 
final  disposition  of  the  affairs  of  the  Five  Civilized  Tribes  in  the 
Indian  Territory.  In  this  statute  rules  are  laid  down  for  deter- 
mining tribal  membership;  the  removal  of  chiefs  for  non-per- 
formance of  duties  prescribed  by  the  act;  the  "transfer  of  tribal 
schools  to  the  control  of  the  Secretary  of  Interior;  for  the  collec- 
tion of  tribal  revenues  by  officers  appointed  by  the  Secretary; 
the  abolishment  of  tribal  taxes ;  the  disposition  of  tribal  buildings 
and  other  property;  the  sale  of  unallotted  lands;  the  per  capita 
distribution  of  tribal  funds;  the  prohibition  for  a  period  of 
twenty-five  years  of  the  sale  or  encumbering  by  Indians  of  lands 
allotted  to  them  (though  leases  may  be  entered  into,  except  home- 
steads, with  the  approval  of  the  Secretary  of  the  Interior)  ;  that 
all  lands,  thus  restricted,  shall  he  exempt  1'rom  taxation  as  long 
as  the  title  remains  in  the  original  allottee.38 

33  Sections  27  and  28  provide  as  follows: 

"  Sec.  27.  That  the  lands  belonging  to  the  Choctaw,  Chickasaw,  Cherokee, 
Creek,  or  Seminole  tribes,  upon  the  elisor  lutiou  of  said  tribes,  shall  not  become 
public  lands  nor  property  of  the  United  States,  but  shall  be  held  in  trust  by 
the  United  States  for  the  use  and  benefit  of  the  Indians  respectively  com- 
prising each  of  said  tribes,  and  their  heirs  as  the  same  shall  appear  by  the 
n  Us  as  finally  concluded  as  heretofore  and  hereinafter  provided  foT:  Pro- 
vided, That  nothing  herein  contained  shall  interfere  with  any  allotments 
heretofore  or  hereafter  made  or  to  be  made  under  the  provisions  of  this  or 
any  other  Act  of  Congress. 

"  Bee  2S.  That  the  tribal  existence  and  present  tribal  governments  of  the 
Choctaw,  Chickasaw,  Cherokee,  Creek,  and  Seminole  tribes  or  nations  are 
hereby  continued  in  full  force  and  effect  for  all  purposes  authorized  by  law, 
'  until  otherwise  provided  by  law,  but  the  tribal  council  or  legislature  in  any 
of  said  tribes  or  nations  shall  net  be  in  session  for  a  longer  period  than 
thirty  days  in  any  OM  year:  Provided,  That  DO  act,  ordinance,  or  resolution 
(e.xeept  resolutions  of  adjournment)  of  the  tribal  council  or  legislature  of 
i-iiv  of  said  tribes  or  nations  shall  be  of  any  validity  until  approved  by  the 
I'm  sident  of  the  United  States:  Provided  further,  That  no  contract  involving 
the  payment  or  expenditure  of  any  ni.-ney  or  alle. -tinj,'  any  property  belong.ng 
to  any  of  said  bakes  u  nations  by  them  or  any  of  them  or  by  any  officer 
thereof,  shall  be  of  any  validity  until  approved  by  the  President  of  the  United 
State-. " 


318  United  States  Constitutional,  Law. 

By  an  act  approved  May  8,  l^OG,  Section  6  of  the  Act  of  1887 
is  amended  so  as  to  read  as  follows :  "  Sec.  6.  That  at  the  expira- 
tion of  the  trust  period  and  when  the  lands  have  been  conveyed 
to  the  Indians  by  patent  in  fee,  as  provided  in  section  five  of  this 
Act,  then  each  and  every  allottee  shall  have  the  benefit  of  and  be 
subject  to  the  laws,  both  civil  and  criminal,  of  the  State  or  Terri- 
tory in  which  they  may  reside;  and  no  Territory  shall  pass  or 
enforce  any  law  denying  any  such  Indian  within  its  jurisdiction 
the  equal  protection  of  the  law.  And  every  Indian  born  within 
the  territorial  limits  of  the  United  States  to  whom  allotments 
shall  have  been  made  and  who  has  received  a  patent  in  fee  simple 
under  the  provisions  of  this  Act,  or  under  any  law  or  treaty,  and 
every  Indian  born  within  the  territorial  limits  of  the  United 
States  who  has  voluntarily  taken  up  within  said  limits  his  resi- 
dence separate  and  apart  from  any  tribe  of  Indians  therein,  and 
has  adopted  the  habits  of  civilized  life,  is  hereby  declared  to  be 
a  citizen  of  the  United  States,  and  is  entitled  to  all  the  rights, 
privileges,  and  immunities  of  such  citizens,  whether  said  Indian 
has  been  or  not,  by  birth  or  otherwise,  a  member  of  any  tribe  of 
Indians  within  the  territorial  limits  of  the  United  States  without 
in  any  manner  impairing  or  otherwise  affecting  the  right  of  any 
such  Indian  to  tribal  or  other  property:  Provided,  That  the  Sec- 
retary of  the  Interior  may,  in  his  discretion,  and  he  is  hereby  au- 
thorized, whenever  he  shall  be  satisfied  that  any  Indian  allottee 
is  competent  and  capable  of  managing  his  or  her  affairs  at  any 
time  to  cause  to  be  issued  to  such  allottee  a  patent  in  fee  simple, 
and  thereafter  all  restrictions  as  to  sale,  incumbrance,  or  taxation 
of  said  land  shall- be  removed  and  said  land  shall  not  be  liable  to 
the  satisfaction  of  any  debt  contracted  prior  to  the  issuing  of  such 
patent:  Provided  further,  That  until  the  issuance  of  fee-simple 
patents  all  allottees  to  whom  trust  patents  shall  hereafter  be  issued 
shall  be  subjected  to  the  exclusive  jurisdiction  of  the  United 
States:  And  provided  further,  That  the  provisions  of  this  Act 
shall  not  extend  to  any  Indians  in  the  Indian  Territory."  39 

The  Enabling  Act  of  June  6,  1906,  providing  for  the  admission 
of  the  Territories  of  Oklahoma  and  Indian  Territory  as  the  State 

39  34  Stat,  at  L.  182. 


The  Legal  Status  of  Indians.  319 

of  Oklahoma,  provided :  "  That  nothing  contained  in  the  said  Con- 
stitution [of  Oklahoma]  shall  be  construed  to  limit  or  impair  the 
rights  of  person  or  property  pertaining  to  the  Indians  of  said 
Territories  (so  long  as  such  rights  shall  remain  unextinguished) 
or  to  limit  or  affect  the  authority  of  the  Government  of  the 
United  States  to  make  any  law  or  regulation  respecting  such 
Indians,  their  lands,  property,  or  other  rights  by  treaties,  agree- 
ment, law,  or  otherwise,  which  it  would  have  been  competent  to 
make  if  this  act  had  never  been  passed." 


CHAPTER  XXI. 

THE  ADMISSION  OF  NEW  STATES. 

§  145.  The  Admission  of  New  States. 

The  process  of  admitting  new  -States  to  the  American  Union 
is  a  comparatively  simple  process  and  but  few  constitutional 
questions  have  arisen  in  connection  with  it.  The  constitutional 
clause  governing  the  -subject  reads  as  follows:  "  Xew  States 
may  be  admitted  by  the  Congress  into  this  Union;  but  no  new 
State  shall  be  formed  or  erected  within  the  jurisdiction  of  any 
other  State;  nor  any  State  be  formed  by  the  junction  of  two  or 
more  States  or  parts  of  States,  without  the  consent  of  the  legis- 
latures of  the  States  concerned  as  well  as  of  the  Congress.''1  It 
frill  thus  be  seen  that  nothing  is  said  as  to  the  conditions  that 
must  be  met  by  a  given  territory  before  it  may  claim,  or  Congress 
be  obligated  to  grant,  admission  to  the  Union  as  a  State.  The 
whole  matter  is  left  absolutely  to  the  discretion  of  Congress.  There 
can  be  no  question  but  that  at  the  time  of  the  adoption  of  the 
Constitution  the  idea  was  generally  held  that  all  non-state  terri- 
tory held  or  to  be  held  by  the  United  States  was  to  be  regarded 
as  material  from  which  new  States  were  to  be  created  as  soon  as 
population  and  material  development  should  warrant.  But  no 
attempt  was  made  to  force  the  hand  of  Congress  under  circum- 
stances that  could  not  be  foreseen  by  defining  in  the  Constitution 
itself  the  conditions  under  which  statehood  should  be  accorded. 
But  one  limitation  is  laid  down,  and  that  impliedly,  and  this 
relates  rather  to  the  status  of  new  States  after  admission,  than 
to  the  process  of  admission  itself.  This  is  that  the  new  Common- 
wealths, when  received  into  constitutional  fellowship  with  the 
older  members  of  the  Union,  shall  stand  upon  an  exactly  equal 
footing  with  them. 

As  has  been  seen,  the  Constitution  does  not  attempt  to  fix  the 
modus  operandi  in  which  new  members  are  to  be  admitted  into 
the  Union.  It  does  not  even  say  whether  they  are  to  be  formed 
from  territory  already  under  its  sovereignty,  and  in  one  instance, 

lArt.  IV,  Sec.  3. 

[320] 


The  Admission  of  Xew  States.  321 

that  of  Texas,  a  new  Stare  was  received  by  the  direct  process  of 
incorporating,  by  a  joint  resolution  of  Congress,  a  foreign  inde- 
pendent State.  In  all  other  cases,  however,  new  States  have  been 
formed  from  areas  already  belonging  to  the  United  States  and 
organized  as  territories. 

-f-  The  usual  process  by  which  these  territories  have  obtained 
statehood  is  as  follows:  The  people  of  a  territory  petition  Con- 
gress to  grant  them  statehood.  If  that  body  is  favorably  disposed, 
a  so-called  "  enabling  act "  is  passed,  authorizing  the  framing  of 
a  state  Constitution,  prescribing  the  manner  in  which  it  shall  be 
framed,  and  laying  down  certain  requirements  that  must  be  met. 
All  these  conditions  having  been  met,  a  resolution  reciting  this 
fact  is  passed  by  Congress,  and  the  Territory  declared  a  State 
and  admitted  as  such  into  the  Union.  In  some  cases  the  final 
step  in  the  process  has  been  a  proclamation  issued  by  the  Presi- 
dent in  obedience  to  the  direction  of  Congress. 

The  above  has  been  the  usual  and  regular  process.  In  not  a 
few  instances,  however,  the  inhabitants  of  Territories  have  met 
in  conventions  and  framed  Constitutions  without  first  obtaining 
the  authorization  of  Congress.  The  acceptance,  however,  by  that 
body,  of  the  instrument  framed  has  been  considered  sufficient  to 
validate  the  proceeding. 

There  has  been  some  little  constitutional  speculation  as  to 
whether  the  decisive,  creative  act  in  the  bringing  into  existence 
of  a  new  State  is  the  Resolution  of  Congress  approving  the  con- 
stitution that  has  been  drawn  up  and  declaring  the  former  Terri- 
tory  one  of  the  States  of  the  Union :  or  whether  the  vivifying  force 
is  derived  from  the  constituent  act  of  the  people  of  the  Territory 
in  framing  and  adopting  their  state  Constitution.  The  latter  is 
the  view  most  acceptable  to  the  States'  Rights  school2     It  would 

2  In  Brownson's  American  Republic,  premising  that  the  entrance  of  Ter- 
ritories into  the  Union  as  States  is  the  free  act  of  the  peoples  of  the  respective 
Territories,  the  argument  is  made  that  the  States  of  the  Southern  Con- 
federacy, l»y  their  ordinances  of  secession,  in  effect  annulled  these  acts,  and 
thus,  ipso  facto,  relegated  themselves  to  the  status  of  Territories,  and  as  such 
came  under  the  complete  control  of  Congress  for  that  body  to  "  reconstruct " 
their  governments  as  it  should  see  fit,  and  readmit  them  as  States,  and  upon 
"  such  terms,  as  it  should  approve. 

21 


322  United  States  Constitutional  Law. 

seem  to  be  sufficently  plain,  however,  that  the  former  is  the  cor- 
rect doctrine;  for  there  can  be  no  question  but  that  it  lies  within 
the  power  of  Congress  arbitrarily  to  refuse  its  approval  to  a  con- 
stitution that  has  been  framed  by  the  people  of  a  Territory 
strictly  in  accordance  with  the  requirements  of  the  Enabling  Act. 
The  final,  and  therefore  decisive  step,  has  thus  to  be  taken  by  the 
Federal  Government. 

This  doctrine  has,  indeed,  received  implied  judicial  sanction 
at  the  hands  of  the  United  States  Supreme  Court  in  its  decision 
in  the  case  of  Scott  v.  Jones.3 

In  this  case  was  involved  the  validity  of  an  act  of  a  legislature 
of  a  Territory  passed  prior  to  the  admission  of  the  Territory  into 
the  Union  as  "a  State.  The  Supreme  Court  dismissed  the  case  for 
lack  of  jurisdiction  on  the  grounds  that  the  law  in  question  was 
not  passed  by  a  legislature  of  a  State  and  did  not,  therefore,  come 
within  the  express  terms  of  the  Judiciary  Act,  which  provided  the 
court  with  its  appellate  jurisdiction.  Referring  to  the  fact  that 
the  jurisdiction  conferred  by  the  twenty-fifth  section  of  the  Judi- 
ciary Act  had  been  granted  lest  a  State  might  legislate  against 
some  part  of  the  Constitution,  or  trench  upon  matters  not  within 
its  province,  the  court  said :  "  Such  being  the  evil  or  danger,  it 
precludes  the  idea  that  this  clause  in  the  Judiciary  Act  had  any 
reference  to  the  fact  that  public  bodies  which  had  not  been  duly 
organized,  and  not  been  admitted  into  the  Union,  would,  as  States, 
undertake  to  pass  laws,  without  being  empowered  to  do  it,  which 
might  encroach  on  the  Union  or  its  granted  powers,  and  hence 
should  be  thus  guarded  against.  Such  conduct  by  such  bodies, 
if  not  situated  within  the  territory  of  the  Union,  would  be  a  for- 
eign affair,  and  not  within  the  cognizance  of  any  of  the  depart- 
ments of  this  government,  unless  so  interfering  with  its  rights  as 
to  call  for  the  political  exercise  of  the  executive  and  legislative 
authority  over  our  foreign  relations.  Again,  such  conduct  by 
bodies  situated  within  our  limits,  unless  by  States  duly  admitted 
into  the  Union,  would  have  to  be  reached  either  by  the  power  of 

3  5  How.  343;  12  L.  ed.  181.  Cf.  Jameson,  Constitutional  Convention, 
Sec.  207. 


The  Admission  of  Xew  States.  323 

the.  Union  to  put  down  insurrections,  or  by  the  ordinary  penal 
laws  of  the  States  or  Territories  within  which  these  bodies  unlaw- 
fully organized  are  situated  and  acting.  While  in  that  condition 
their  measures  are  not  examinable  at  all  by  a  writ  of  error  to 
this  court,  as  not  being  statutes  by  a  State,  or  a  member  of  the 
Union.  And  after  such  bodies  are  recognized  as  having  been 
duly  organized,  and  are  admitted  into  the  Union,  if  they  ever 
be,  the  judicial  tribunals  of  the  General  Government,  which 
acquiesces  in  the  political  organization  that  has  been  professing 
to  pass  statutes,  and  which  admits  it  as  a  legal  and  competent 
State,  must  treat  its  statutes  passed  under  that  organization  as 
they  would  the  statutes  of  any  other  State,  within  the  meaning 
and  spirit  of  the  Judiciary  Act.  And  if  so,  we  must  inquire  only 
into  the  validity  of  their  subject-matter,  and  not  as  to  the  new, 
any  more  than  the  old,  States,  ever  suppose  that  the  question  of 
their  political  competency  or  power  to  pass  statutes  at  all  was  an 
inquiry  intended  to  be  placed  under  our  consideration  and  de- 
cision by  the  twenty-fifth  section  of  the  Judiciary  Act  It  fol- 
lows, then,  that  a  statute,  passed  by  a  political  body  before  its 
admission  into  the  Union,  seems  either  not  to  be  one,  under  the 
cognizance  of  the  Union  or  its  judicial  tribunals,  by  means  of 
Sec.  25  of  the  Judiciary  Act,  unless  re-enacted  or  adopted  after 
becoming  a  State ;  then  it  is  treated  like  the  statute  of  any  State ; 
or  the  admission  of  the  State  into  the  Union  by  Congress,  subse- 
quently with  the  constitutional  and  political  organization  under 
which  the  statute  was  passed  by  the  State  —  a  competent  State 
—  leaving,  as  in  other  cases,  merely  its  subject-matter  to  be  ex- 
amined in  order  to  see  if  it  violates  or  not  any  acts  or  provisions 
of  the  General  Government." 


CHAPTER   XXII. 

THE    POWER   OF   THE    UNITED   STATES    TO   ACQUIRE   TERRITORY. 

In  the  chapters  that  have  gone  before  the  effort  has  been  made 
to  set  forth  the  constitutional  relations  subsisting  between  the 
Union  and  its  commonwealth  members.  From  the  very  beginning, 
however,  the  American  constitutional  system  has  included  other 
political  units  than  the  States.  These  units  are  Territories,  De- 
pendencies, and  a  Federal  District  or  seat  of  Xational  Govern- 
ment.1 To  a  consideration  of  the  constitutional  questions  incident 
to  the  annexation  and  government  by  the  Xational  Government 
of  the  territories  and  peoples  of  which  these  political  elements 
are  composed,  we  shall  now  turn.  This  will  involve  a  discussion 
of  the  following  points.  (1)  The  constitutional  power  of  the 
United  States  to  acquire  territories;  (2)  the  modes  or  purposes 
for  which  they  may  be  acquired;  and  (3)  their  constitutional 
status.    First  then  as  to  the  power  to  acquire.2 

Xo  express  power  is  given  to  the  United  States  by  the  Constitu- 
tion to  acquire  additional  territory.  In  1S03,  however,  the  vast 
Louisiana  Territory  was  purchased  from  France  and  annexed  to 
the  Union;  in  1819  Florida  was  obtained  from  Spain;  in  1846 
the  Oregon  Territory  was  obtained  through  discovery,  occupation, 
and  convention  with  England;  in  1845  the  State  of  Texas  was 
annexed;  in  1848  and  1853  additional  territory  was  obtained  by 
cession  from  Mexico;  in  1856  the  annexation  of  the  Guano  Islands 
was  authorized  by  a  congressional  statute;  in  1807,  Alaska,  the 
first  territory  non-contiguous  to  the  United  States,  was  obtained 
from  Russia ;  in  the  same  year  Midway  Island  was  taken  posses- 

1  The  term  "  Dependency  "  can  hardly  be  said  to  have  been  as  yet  accepted 
as  a  technically  correct  term,  and  possibly  never  may  be.  In  default,  how- 
ever, of  a  better  word  the  term  will  be  here  provisionally  employed. 

2  In  this  chapter  there  is  considered  simply  the  question  as  to  the  power 
of  the  United  States  to  extend  its  sovereignty  over  additional  territory.  The 
question  whether  territory  when  thus  brought  under  the  dominion  of  the 
United  States  is  necessarily  "  incorporated  "  in  it,  in  a  peculiar  constitutional 
sense,  is  discussed  in  a  later  chapter   (Chapter  XXX). 

[324] 


Power  of  United  States  to  Acquike  Territory.     325 

sion  of  by  the  President;  in  1898  the  Hawaiian  Islands  were 
annexed;  in  £698,  as  a  result  of  the  Spanish-American  War,  the 
islands  of  Porto  Rico,  the  Philippines,  and  Guam  came  under  the 
sovereignty  of  the  United  States;  and  in  1900,  three  of  the 
Samoan  Islands  were  acquired.3 

The  constitutional  power  of  the  United  States  thus  to  annex 
foreign  territory  has  been,  at  various  times,  and  by  various 
writers,  derived  from  the  following  sources: 

1.  The  power  to  admit  new  States  into  the  Union.4 

2.  The  power  to  declare  and  carry  on  war.5 

3.  The  power  to  make  treaties.6 

4.  The  power,  as  a  Sovereign  State,  to  acquire  territory  by  dis- 
covery and  occupation  or  by  any  other  methods  recognized  as 
proper  by  international  usage. 

These  various  sources  will  be  considered  seriatim. 

§  146.  The  Right  to  Annex  Based  on  the  Right  to  Admit  New 

States. 
At  the  time  of  the  adoption  of  tjie  Constitution,  the  territory 
subject  to  the  sovereignty  of  the  United  States  consisted  of  the 
respective  territories  of  the  thirteen  original  States,  and  the  vast 
reaches  of  land  to  the  west, —  that  to  the  north  and  west  of  the 
Ohio  river  being  known  as  the  Xorthwest  Territory.  These  areas 
had  been  ceded  to  the  old  Confederation  of  the  States  and  gov- 
erned according  to  the  provisions  of  the  famous  Xorthwest  Ordi- 
nance of  1787;  which  provisions  were  re-enacted  upon  the  estab- 
lishment of  the  new  government  in  1789.7 

3  The  term  '"Insular  Possessions"  has  been  officially  applied  to  the  islands 
owned  by  the  United  States. 

4  Art.  IV,  Sec.  3.  CI.  1. 
."Art.  I.  Sec.  ft,  CI.  11. 

6  Art.  II.  Sec.  2.  CI.  2. 

7  To  this  government  Georgia  and  Xorth  Carolina  later  ceded  theft"  western 
lands. 

The  act  of  August  7.  1780.  was  a>  follows: 

"An  Art  to  I'roride  for  the  Government  of  the  Territory  ~Sorthv>cst  of  the 
Hirer  Ohio: 

"Whereas,  in  order  that  the  ordinance  of  the  United  States  in  Congress 
assembled   for   the  government  of  the   territory  northwest  of  the  River  Ohio 


326  United  States  Constitutional  Law. 

It  is  not  necessary  in  this  place  to  trace  the  history  of  the  part 
played  during  the  period  preceding  17 ST  by  the  conilicting  claims 
of  the  colonies  or  States  to  the  "  back  lands/'  and  how  Maryland 
refused  to  sign  the  Articles  of  Confederation  until  all  the  States 
should  surrender  these  lands  to  the  Congress  for  the  joint  benefit 
of  all  the  people  of  the  States  to  be  in  proper  time  "  parcelled  out 
by  Congress  into  free  convenient  and  independent  States  and 
Governments,"  and  how,  finally,  this  was  substantially  done. 

That  the  Congress  of  the  Confederation  had  no  constitutional 
power  to  accept  these  cessions  of  territory  is  sufficiently  plain,8 
but  this  was  not  questioned  at  the  time,  and  in  1787  the  ordi- 
nance for  the  government  of  the  Xorthwest  Territories  was 
enacted.  The  Articles  of  Confederation  did,  however,  provide 
for  the  admission  of  new  States,  Article  XI  declaring  that, 
"  Canada,  acceding  to  this  Confederation,  and  joining  in  the 
measures  of  the  United  States,  shall  be  admitted  into,  and  entitled 
to  all  the  advantages  of  the  Union;  but  no  other  colony  shall  be 
admitted  into  the  same,  unless  such  admission  be  agreed  to  by 
nine  States." 

may  continue  to  have  full  effect,  it  is  requisite  that  certain  provisions  should 
be  made  so  as  to  adapt  the  same  to  the  present  Constitution  of  the  United 
States. 

"  Section  1.  Be  it  enacted  by  the  Senate  and  House  of  Representatives  of 
the  United  States  of  America  in  Congress  assembled,  That  in  all  cases  in 
which  by  the  said  ordinance  any  information  is  to  be  given  or  communication 
made  by  the  Governor  of  said  Territory  to  the  United  States  in  Congress 
assembled,  or  to  any  of  their  officers,  it  shall  be  the  duty  of  said  Governor 
to  give  such  information  and  to  make  such  communication  to  the  President 
of  the  United  States,  and  the  President  shall  nominate,  and,  by  and  with  the 
advice  and  consent  of  the  Senate,  shall  appoint  all  officers  which  by  said 
ordinance  were  to  have  been  appointed  by  the  United  States  in  Congress 
assembled,  and  all  officers  so  appointed  shall  be  commissioned  by  him,  and  in 
all  cases  where  the  United  States  in  Congress  assembled  might  by  the  said 
ordinance  revoke  any  commission  or  remove  from  any  office,  the  President  is 
hereby  declared  to  have  the  same  power  of  revocation  and  removal. 

"  Section  2.  And  it  is  further  enacted,  That  in  case  of  the  death,  removal, 
resignation  or  necessary  absence  of  the  Governor  of  said  Territory,  the  secre- 
tary thereof  shall  be  and  is  hereby  authorized  and  required  to  execute  all  the 
powers  and  perform  all  the  duties  of  the  Governor  during  the  vacancy 
occasioned  by  the  removal,  resignation  or  necessary  absence  of  said  Governor." 

8C/.  Taney  in  Scott  v.  Sandford,  19  How.  393;  15  L.  ed.  691. 


Power  of   United  States  to  Acquire  Territory.     327 

In  the  Convention  which  framed  the  present  Constitution  the 
Virginia  resolutions  declared  "  that  provision  ought  to  be  made 
for  the  admission  of  States  lawfully  arising  within  the  limits  of 
the  United  States  whether  from  a  voluntary  juncture  of  govern- 
ment, transitory  or  otherwise,  with  the  consent  of  a  number  of 
voices  in  the  national  legislature  less  than  the  whole."  This  was 
agreed  to  without  debate  in  the  committee  of  the  whole.  As 
reported  by  the  Committee  of  Detail,  the  draft  of  the  Constitu- 
tion provided9  that  "  new  States  lawfully  constituted  or  estab- 
lished within  the  limits  of  the  United  States  may  be  admitted,  by 
the  legislature  into  the  government;  but  to  such  admission  the 
consent  of  two-thirds  of  the  members  present  in  each  House  shall 
be  necessary." 

In  the  Convention,  in  order  to  cover  certain  conditions  then 
existing,  especially  the  status  of  Vermont,  this  clause,  after 
repeated  amendments,  was  finally  made  to  read :  "  New  States 
may  be  admitted  by  the  legislature  into  the  Union;  but  no  new 
States  shall  be  hereafter  founded  or  erected  within  the  jurisdic- 
tion of  any  of  the  present  States,  without  the  consent  of  the  legis- 
lature of  such  State  as  well  as  of  the  general  legislature." 

As  finally  phrased  by  the  Committee  on  Style  and  adopted  by 
the  Convention  the  clause  reads :  "  New  States  may  be  admitted 
by  the  Congress  into  this  Union;  but  no  new  State  shall  be 
founded  or  erected  within  the  jurisdiction  of  any  other  State;  nor 
any  State  be  formed  by  the  junction  of  two  or  more  States,  or 
parts  of  States,  without  the  consent  of  the  legislatures  of  the 
States  concerned,  as  well  as  of  the  Congress." 

During  this  course  of  evolution  it  will  be  seen  that  the  limita- 
tion "  within  the  limits  of  the  United  States  "  disappeared.  It 
does  not,  however,  appear  from  the  debates  just  why  these  words 
of  limitation  were  omitted.  From  some  expressions  of  opinion  of 
the  time,  there  is,  nevertheless,  evidence  that  the  possibility  and 
desirability  of  an  expansion  of  the  United  States  beyond  the 
limits  fixed  by  the  treaty  of  1783,  was  early  recognized  by  men 
active  in  the  framing  and  adoption  of  our  present  Constitution. 

9  Art.  XVII. 


328  United  States  Constitutional  Law. 

Alexander  Hamilton,  in  a  letter  to  Washington,  wrote:  "  We 
must  remain  in  a  position  to  take  advantage  of  circumstances, 
we  must  be  prepared  to  acquire  Florida,  and  to  annex  Louisiana 
and  we  must  even  wink  further  South." 

And  Gouverneur  Morris,  the  author  of  that  clause  of  the  Con- 
stitution  which  confers  upon  Congress  the  power  to  make  rules 
and  regulations  respecting  territory  and  other  property  of  the 
United  States,  writing  in  1803  to  Livingston  said:  "I  am 
very  certain  that  I  had  it  not  in  contemplation  to  insert  a  decree 
de  coercendo  imperio  in  the  Constitution  of  America.  Without 
examining  whether  a  limitation  of  territory  be  or  be  not  essential 
to  the  preservation  of  republican  government,  I  am  certain  that 
the  country  between  the  Mississippi  and  the  Atlantic  exceeds  by 
far  the  limits  which  prudence  would  assign,  if  in  effect  any  limi- 
tation be  required.  Another  reason  of  equal  weight  must  have 
prevented  me  from  thinking  of  such  a  clause.  I  knew  as  well 
then  as  I  do  now  that  all  Xorth  America  must  at  length  be 
annexed  to  us.  Happy,  indeed,  if  the  hist  of  dominion  stop 
there."  Writing  again  to  Livingston,  however,  Morris  said  that 
while  he  held  that  the  United  States  might  acquire  additional 
territory,  it  could  not  create  new  States  of  the  bunion  out  of  it. 
lie  said :  "  I  perceive  I  mistook  the  drift  of  your  inquiry,  which 
substantially  is,  whether  Congress  can  admit,  as  a  new  State, 
territory  which  did  not  belong  to  the  United  States  when  the  Con- 
stitution was  made.  In  my  opinion  they  cannot.  I  always 
thought,  when  we  should  acquire  Canada  and  Louisiana,  it  would 
be  proper  to  govern  them  as  provinces  and  allow  them  no  voice 
in  our  councils.  In  Avording  the  third  section  of  the  fourth 
article,  I  went  as  far  as  circumstances  would  permit  to  establish 
the  exclusion.  Candor  obliges  me  to  add  my  belief  that  had  it 
been  more  pointedly  expressed,  a  strong  opposition  would  have 
been  made."  10 

§  147.  Annexation  of  Louisiana.    Views  of  Jefferson. 

When,  in  1790,  Xorth  Carolina  made  a  cession  to  the  United 
States  of  its  title  to  western  territory,  this  was  accepted  by  Con- 

io Life  and  Writings  (Sparks),  III,  185,  192. 


Pow»R  of   United  Statks  to   &GQBIBS   Tkrki toby.      .'329 

gress  in  the  Act  of  April  2,  1790.  without  constitutional  question. 
This  it  will  be  observed,  however,  involved  uniy  a  transfer  of 
title  from  a  State  to  the  Nation  and  not  an  annexation  of  terri- 
tory foreign  to  the  United  States.  The  acquisition  of  the 
Louisiana  Territory  was,  however,  of  this  latter  character,  and 
Jetferson,  then  President,  felt,  and  expressed,  as  we  know,  most 
serious  doubts  as  to  the  constitutionality  of  the  act,  though,  upon 
grounds  of  political  expediency,  he  urged  that  the  treaty  provid- 
ing for  it  be  ratified,  and  if  necessary,  a  constitutional  amend- 
ment giving  to  the  National  Government  the  necessary  power 
be  adopted.11 

ii  Before  the  rutilication  of  the  treaty  Jefferson  wrote  to  John  Dickinson  as 
follows :  "  The  General  Government  has  no  powers  but  such  as  the  Constitu- 
tion gives  it:  ami  it  has  not  given  it  power  of  holding  foreign  territory,  and 
still  less  of  incorporating  it  into  the  Union.  An  amendment  of  the  Constitu- 
tion seems  necessary  for  this.  In  the  meantime  we  must  ratify  and  pay  our 
money,  as  we  have  treated  for  a  thing  beyond  the  Constitution  and  rely  on 
tin'  nati  n  ti  sanation  an  act  done  for  its  great  good  without  its  previous 
authority." 

To  John  C.  Breckenridge  he  wrote :  "  The  Constitution  has  made  no  pro- 
vision for  holding  foreign  territory,  still  less  for  incorporating  foreign  nations 
into  our  Union.  The  Executive,  in  seizing  the  fugitive  occurrence  which  so 
much  advances  Mr  good  of  their  country,  has  done  an  act  beyond  the  Con- 
stitution. The  Legislature,  in  casting  behind  them  metaphysical  subtleties 
and  risking  themselves  like  faithful  servants,  must  ratify  and  pay  for  it  and 
throw  themselves  on  their  country  for  doing  for  them  unauthorized  what  we 
know  they  would  have  done  for  themselves  had  they  heen  in  a  situation  to  do 
it.  It  is  a  case  of  a  guardian  investing  the  money  of  the  ward  in  purchasing 
an  important  adjacent  territory,  and  saying  to  him  when  of  age:  'I  did  this 
for  your  good;  I  pretend  to  no  right  to  bind  you:  you  may  disavow  me  and  T 
must  get  out  of  the  scrape  as  best  I  can:  I  thought  it  my  duty  to  risk  myself 
for  you.'  But  we  shall  not  be  disavowed  by  the  nation,  and  their  act  of 
indemnity  will  confirm  and  not  weaken  the  Constitution  by  more  strongly 
marking  its  lines." 

Writing  to  William  C.  Nicholson  before  the  ratification  of  the  Louisiana 
treaty  he  said:  "Whatever  Congress  shall  think  best  to  do  should  be  done 
with  as  little  debate  M  po-sible.  and  particularly  a*  far  as  Tespects  the  con 
stitutional  difficulty.  I  am  aware  of  the  force  of  the  observations  you  make 
on  the  power  givr>n  by  the  Constitution  to  Congress  to  admit  new  States  into 
the  Union  without  re-training  the  subject  to  the  territory  then  constituting 
the  United  Stab-.  But  when  I  consider  that  the  limits  of  the  United  States 
are  precisely  fixed  by  the  treaty  of  1783:  that  the  Constitution  expressly 
declares  itself  to  be  made  for  the  United  States,  I  cannot  help  believing  that 


330  United  States  Constitutional  Law. 

Though  not  perfectly  clear  upon  the  point,  it  would  seem  that 
Jefferson  drew  a  distinction  between  the  constitutional  power  of 
the  United  States  to  extend  its  sovereignty  over  additional  terri- 
tory and  to  "  incorporate "  it  in  the  United  States  as  a  part 
thereof;  and  that  his  constitutional  qualms  were  excited  rather 
by  the  exercise  of  the  latter  power  than  of  the  former.  In  answer 
to  a  letter  of  Gallatin,  he  wrote  (January,  1803) :  "  There  is  no 
constitutional  difficulty  as  to  the  acquisition  of  territory,  and 
whether  when  acquired  it  may  be  taken  into  the  Union  by  the 
Constitution  as  it  now  stands  will  become  a  question  of  expe- 
diency. I  think  it  will  be  safer  not  to  permit  the  enlargement 
of  the  Union  but  by  the  amendment  of  the  Constitution." 

In  the  first  of  the  drafts  of  a  constitutional  amendment  which, 
for  this  purpose,  Jefferson  drew  up,  it  was  provided  that,  "  The 
Province  of  Louisiana  is  incorporated  with  the  United  States 
and  made  a  part  thereof."  The  second  draft  provided  that, 
"  Louisiana  as  ceded  by  France  to  the  L'nited  States  is  made  a 
part  of  the  United  States.  Its  white  inhabitants  shall  be  citizens 
and  stand,  as  to  their  rights  and  obligations,  on  the  same  footing 
with  the  citizens  of  the  United  States  in  analogous  situations."  12 

The  question  of  the  annexation  of  territory  without  "  incor- 
poration "  into  the  United  States  will  be  discussed  in  Chapters 
XXIX  and  XXX. 

Jefferson  stood  by  no  means  alone  in  his  doubts  as  to  the  con- 
stitutional power  of  the  United  States  to  annex  and  incorporate 

the  intention  was  to  permit  'Congress  to  admit  into  the  Union  new  States 
which  should  be  formed  out  of  the  territory  for  which  and  under  whose 
authority  alone  they  were  acting.  I  do  not  believe  it  was  meant  that  they 
might  receive  England,  Holland,  Ireland,  etc.,  into  it,  which  would  be  the 
case  in  your  construction.  When  an  instrument  admits  of  two  constructions, 
one  safe  and  the  other  dangerous,  the  one  precise,  the  other  indefinite,  I  prefer 
that  which  is  safe  and  precise.  I  had  rather  risk  enlargement  of  power  from 
the  nation  where  it  is  found  necessary  than  to  assume  it  by  a  construction 
which  makes  our  powers  boundless." 

12  For  other  declarations  of  Jefferson  upon  this  point,  and  a  review  of  the 
debates  in  Congress  concerning  the  Louisiana  purchase,  see  Downes  v.  Bidwell, 
182  U.  S.  244;  21  Sup.  Ct.  Rep.  770;  45  L.  ed.  108S,  and  the  argument  of 
the  Attorney-General  in  Goetze  v.  United  States,  The  Insular  Cases,  H.  R. 
Doc,  509,  56th  Cong.,  2d  Sess.,  pp.  152  et  seq. 


Power  of  United  States  to  Acquire  Territory.     331 

Louisiana,  but  these  doubts  were  not  sufficiently  general  to  lead 
the  people  to  give  expressly  by  constitutional  amendment  that 
right,  the  implied  existence  of  which  was  questioned.13 

With  regard  to  deriving  the  power  to  annex  from  the  power  to 
admit  new  States,  it  may  be  observed  that  not  only  is  reference 
to  this  source  for  authority  unnecessary,  but,  when  appealed  to, 
would  not  seem  to  yield  to  the  ^National  Government  as  ample 
powers  as  are  furnished  it  when  the  treaty  and  war  powers  are 
relied  upon.14 

It  may  further  be  observed  that  when  recourse  is  had  to  the 
power  to  admit  new  States  for  the  authority  to  annex  foreign 

is  In  the  debates  attendant  upon  the  annexation  of  Texas,  Choate  in  the 
Senate  and  Winthrop,  Brangle,  and  Barnard  in  the  House  argued  that  the 
United  States  was  without  constitutional  authority  to  annex  foreign  territory 
(Cong.  Globe,  23th  Cong.,  2d  Sess.).  In  1838  when  the  annexation  of  Texas 
"was  being  agitated,  J.  Q.  Adams  in  the  House  of  Representatives  offered  the 
following  resolution:  "Resolved,  that  the  power  of  annexing  the  people  of 
any  independent  foreign  State  to  the  Union  is  a  power  not  delegated  by  the 
Constitution  of  the  United  States  to  their  Congress,  or  to  any  department  of 
the  government,  but  reserved  by  the  people.  That  any  attempt  by  act  of 
Congress  or  by  treaty  would  be  a  usurpation  of  power,  unlawful  and  void, 
and  which  it  would  be  the  right  and  the  duty  of  the  free  people  of  the  Union 
to  resist  and  avoid." 

Continuing,  he  declared,  that,  if  annexed,  it  would  be  such  a  violation  of 
the  national  compact  as  "  not  only  inevitably  to  result  in  a  dissolution 
of  the  Union,  but  fully  to  justify  it,  and  we  not  only  assert  that  the  people 
of  the  free  States  ought  not  to  submit  to  it,  but  we  say  with  confidence  that 
they  would  not  submit  to  it."  Many  Southerners,  on  the  other  hand,  asserted 
that  if  Texas  were  not  admitted,  they  would  destroy  the  Union. 

""If  it  [the  power  of  annexation]  is  to  be  implied  only  from  the  latter 
power  [the  right  to  admit  new  States],  it  would  seem  quite  reasonable  to 
hold  that  it  could  be  exercised  in  any  case  only  for  the  purpose  of  creating 
a  new  State  out  of  the  acquired  territory,  and  there  would  be  no  power  to 
govern  it  except  for  that  purpose,  but  the  right  of  Congress  to  admit  the 
acquired  territory  as  a  State  or  States,  or  to  refuse  to  do  so,  according 
to  its  own  judgment  and  discretion,  i3  universally  admitted,  and,  therefore, 
it  would  seem  to  follow  that  the  power  to  acquire  and  govern  cannot  be 
derived  from  the  power  to  admit,  for,  if  it  did,  all  territory  acquired  by  either 
of  the  methods  stated  would  have  to  be  converted  into  a  State  or  States.  It 
may  be  said  that  no  territory  ought  to  be  acquired  which  cannot  be  ultimately 
fitted  for  admission  as  a  State  or  States  —  but  this  is  a  political  and  not  a 
judicial  question."  Address  of  John  G.  Carlisle  before  the  American  Bar 
Association,  1902. 


33L2  United  States  Constitutional  Law. 

territory  considerable  support  is  given  to  the  position  that,  in 
exercising  it,  the  consent  of  the  other  States  should  be  obtained. 
Thus  at  the  time  of  the  debate  in  Congress  over  the  purchase  of 
Louisiana,  Pickering,  who  did  not  deny  the  right  of  the  United 
States  to  acquire  new  territory  by  conquest  or  purchase  to  be  held 
and  governed  as  dependent  territory,  denied  that  territory  could 
be  annexed  with  the  pledge  that  it  should  be  divided  up  and 
admitted  as  States  into  the  Union,  unless  the  consent  of  the 
copartner  States  were  obtained.  Griswold  took  much  the  same 
view.  He  contended  that  "  the  Union  of  the  States  was  formed 
on  the  principles  of  a  copartnership,  and  it  would  be  absurd  to 
suppose  that  the  agents  of  the  parties  who  have  been  appointed  to 
execute  the  business  of  the  compact,  could  admit  a  new  partner 
without  the  consent  of  the  parties  themselves."  1o 

§  148.  Territories  as  Embryo  States. 

There  can  be  no  question  but  that  it  was  the  general  intention 
at  the  time  that  the  Constitution  was  adopted  that  all  the  terri- 
tory then  under  the  sovereignty  of  the  United  States  and  not 
included  within  the  limits  of  any  one  of  the  then  several  States 
should  ultimately  be  divided  up  and  admitted  as  States  into  the 
Union. 

It  will  be  remembered  that  the  Ordinance  for  the  government 
of  the  Northwest  Territory  provided  that  — "  There  shall  be 
formed  in  the  said  territory  not  less  than  three  nor  more  than 
five  States.  .  .  .  And  .  .  .  such  State  shall  be  admitted 
.  .  .  on  an  equal  footing  with  the  original  States,  in  all  respects 
whatever;  and  shall  be  at  liberty  to  form  a  permanent  Constitu- 
tion and  state  government.16 

The  treaty  which  provided  for  the  cession  of  Louisiana  to  the 
United  States  declared  that  — "  The  inhabitants  of  the  ceded 
territory  shall  be  incorporated  into  the  Union  of  the  United 
States  and  admitted  as  soon  as  possible  according  to  the  principles 
of  the  federal  Constitution  to  the  enjoyment  of  all  the  rights, 

15  Annals  of  Cong.  1803-4,  p.  461. 

16  Art.  5. 


Power  of  Uxited  States  to  Acq  tike  Teeeitoey.     333 

advantages,  and  immunities  of  the  citizens  of  the  United 
States."  1T 

In  the  treaty  with  Spain  which  confirmed  the  title  of  the  United 
States  to  the  Floridas  the  United  States  promised  that  —  "  The 
inhabitants  of  the  territories  .  .  .  shall  be  incorporated  in 
the  Union  of  the  United  States  as  soon  as  it  may  be  consistent 
with  the  principles  of  the  Federal  Constitution  and  admitted  to 
the  enjoyment  of  all  the  privileges,  rights,  and  immunities  of  the 
citizens  of  the  United  States."  1S 

In  the  treaty  of  18-iS  with  Mexico  whereby  Mexico  relinquished 
its  rights  to  Upper  California  and  Xew  Mexico  the  United  States 
promised  that  — u  The  Mexicans  who,  in  the  territories  afore- 
said, shall  not  preserve  the  character  of  citizens  of  the  Mexican 
Republic  conformably  with  what  is  stipulated  in  the  preceding 
article,  shall  be  incorporated  in  the  Union  of  the  United  States 
and  to  be  admitted  at  the  proper  time  (to  be  judged  of  by  the 
Congress  of  the  United  States)  to  the  enjoyment  of  all  the  rights 
of  citizens  of  the  United  States  according  to  the  principles  of  the 
Constitution."  10 

In  the  treaty  with  Russia  for  the  cession  of  Alaska  the  United 
States  agreed  that  —  "The  inhabitants  of  the  ceded  territory 
.  .  .  should  be  admitted  to  the  enjoyment  of  all  the  rights, 
advantages  and  immunities  of  citizens  of  the  United  States."20 

In  the  provisions  of  all  of  these  several  treaties  there  is  thus 
to  be  recognized  the  presence  of  the  idea  in  the  minds  of  those 
who  framed  and  ratified  them  that  the  territories  thus  acquired 
were  to  be  incorporated  as  integral  elements  in  the  United  States 
and  ultimately  to  be  erected  into  States  and  admitted  into  the 
Union  in  full  and  equal  fellowship  with  the  original  States.  The 
consideration  which  led  the  ceding  nations  to  have  these  promises 
inserted  in  the  treaties  of  cession  was  the  same  which  urges  all 
nations  in  parting  with  portions  of  their  territories  and  their 
inhabitants  to  provide,  as  far  as  possible,  that  their  former  eiti- 

Stafc  at  &  20:2. 
«8  Stat,  at  L.  250. 

19  0  Stat,  at  L.  030. 

20  15  Stat,  at  L.  542. 


334  United  States  Constitutional  Law. 

zens  thus  handed  over  to  the  control  of  a  foreign  power,  shall  not 
be  oppressed  but  be  treated  on  an  equality  with  the  other  citizens 
of  the  annexing  State. 

Down  to  the  time  of  the  war  of  1898  with  Spain  we  find 
repeated  utterances  of  public  men  and  of  the  courts  that  all  of 
the  territories  of  the  United  States,  originally  owned  and  acquired, 
not  already  States,  were  destined  for  that  status.21  Senator  Hoar, 
indeed,  declared  in  the  Senate  when  the  future  of  the  Philippine 
Islands  was  being  discussed,  "  I  have  been  unable  to  find  a  single 
reputable  authority  more  than  twelve  months  old,  for  the  power 
now  claimed  for  Congress  to  govern  dependent  nations  or  terri- 
tories not  expected  to  become  States.  The  contrary,  until  this 
war  broke  out,  has  been  taken  as  too  clear  for  reasonable  ques- 
tion." 

In  support  of  the  view  that  the  holding  permanently  of  terri- 
tory not  destined  for  statehood  is  foreign  to,  and  not  compatible 
with,  our  principles  of  government,  the  declarations  of  Jefferson, 
Madison,  Monroe,  J.  Q.  Adams,  Webster,  Calhoun,  Clay,  Eeverdy 
Johnson,  Berrien,  Edward  Everett,  Seward,  and  Sumner  have 
been  quoted ;  and,  of  course,  if  Senator  Hoar's  statement  be  cor- 
rect, this  list  might  be  almost  indefinitely  extended. 

§  149.  Judicial  Dicta.    Taney's  Views. 

A  certain  number  of  dicta  of  the  Supreme  Court  of  the  United 
States  may  also  be  found  in  which  the  language  indicates  an 
accepted  assumption  that  the  territories  held  by  the  United  States 
were  all  ultimately  to  be  erected  into  States.  Thus  in  Lough- 
borough v.  Blake,22  Marshall,  after  referring  to  the  attempt  of 
Great  Britain  to  tax  her  American  colonies,  said :  "  The  differ- 
ence between  requiring  a  continent  with  an  immense  population 
to  submit  to  be  taxed  by  a  government  having  no  common  interest 
with  it,  separated  from  it  by  a  vast  ocean  and  associated  with  it 
by  no  common  feelings,  and  permitting  the  representatives  of  the 

21  Alaska  may  be  treated  as  an  exception.  This  area,  at  the  time  of  its 
annexation,  had  a  very  small  population  and  it  was  not  expected  that  this 
population  would  increase. 

225  Wh.  317;  5  L.  ed.  98. 


Power  of  United  States  to  Acquire  Territory.     335 

American  people,  under  the  restrictions  of  our  Constitution,  to 
tax  a  part  of  the  society,  which  is  in  a  state  of  infancy,  advancing 
to  manhood,  looking  forward  to  complete  equality  as  soon  as  that 
state  of  manhood  shall  be  attained,  as  is  the  case  with  the  Terri- 
tories, is  too  obvious  not  to  present  itself  to  the  minds  of  all." 

Thus  also,  in  Shively  v.  Bowlby,23  the  court  said,  "  The  Terri- 
tories acquired  by  Congress  whether  by  deed  or  cession  from  the 
original  States,  or  by  treaty  with  a  foreign  country,  are  held  with 
the  object,  as  soon  as  their  population  and  condition  justify,  of 
being  admitted  into  the  Union  as  States  upon  an  equal  footing 
with  the  original  States  in  all  respects;  and  the  title  and  dominion 
of  the  tidewaters  and  the  lands  under  them  are  held  by  the  United 
States  for  the  benefit  of  the  whole  people,  and,  as  this  Court  has 
often  said,  in  trust  for  the  future  States.  .  .  .  Upon  the 
acquisition  of  a  Territory  by  the  United  States,  whether  by  ces- 
sion from  one  of  the  States  or  by  treaty  with  a  foreign  country, 
or  by  discovery  and  settlement,  the  same  title  and  dominion  passed 
to  the  United  States  for  the  benefit  of  the  whole  people  and  in 
trust  for  the  several  States  to  be  ultimately  created  out  of  the 
Territory."' 

Chief  Justice  Taney  has  often  been  cited  as  holding  in  his 
opinion  in  the  Dred  Scott  case  that  foreign  territory  might  be 
acquired  by  the  United  States  only  under  its  power  to  admit  new 
States.  This  is  not  correct.  In  Fleming  v.  Page,"4  he  had  already 
expressly  declared  that  foreign  territory  might  be  acquired  under 
the  treaty  and  war-making  ]>owers,  and  in  the  Dred  Scott 
case,  approves,  upon  this  point,  the  decision  of  Marshall 
in  American  Insurance  Co.  v.  Canter.25  He  asserts,  however, 
that  these  powers  are  to  be  exercised  only  for  the  purpose 
of  acquiring  territories  that  ultimately  may  become  States, 
and  that,  when  acquired,  they  are  to  be  governed  with  this  end 
in  view,  namely,  of  preparing  them  for  this  status.  It  is  thus 
apparent  that  the  constitutional  limitation  which,  in  this  case, 
Taney  is  intent  upon  emphasizing,  is  rather  one  upon  the  con- 

23  152  U.  S.  1;   14  Sup.  Ct.  Rep.  548;  38  L.  ed.  331. 

2*9  How.  603. 

*1  Pet.  511;  7  L.  ed.  242. 


336  United  States  Constitutional  Law. 

trol  of  Congress  over  territories  that  have  been  annexed,  than 
upon  the  power  of  the  General  Government  to  acquire  them.  In 
his  opinion  he  says :  "  There  is  certainly  no  power  given  by  the 
Constitution  to  the  Federal  Government,  to  establish  or  maintain 
colonies  bordering  on  the  United  States  or  at  a  distance,  to  be  ruled 
and  governed  at  its  own  pleasure,  nor  to  enlarge  its  territorial 
limits  in  any  way  except  by  the  admission  of  new  States.  That 
power  is  plainly  given,  and  if  a  new  State  is  admitted  it  needs  no 
further  legislation  by  Congress,  because  the  Constitution  itself 
defines  the  relative  rights  and  powers  and  duties  of  the  State  and 
the  eitizens  of  the  State  and  the  Federal  Government.  But  no 
power  is  given  to  acquire  a  territory  to  be  held  and  governed 
permanently  in  that  character.  And,  indeed,  the  power  exercised 
by  Congress  to  acquire  territory  and  establish  a  government  there 
according  to  its  own  unlimited  discretion  was  viewed  with  great 
jealousy  by  the  leading  statesmen  of  the  day*.  .  .  .  We  do  not 
mean,  however,  to  question  the  power  of  Congress  in  this  respect. 
The  power  to  expand  the  territory  of  the  United  States  by  the 
admission  of  new  States  is  plainly  given,  and  in  the  construction 
of  this  power  by  all  the  departments  of  the  Government  it  has 
been  held  to  authorize-  the  acquisition  of  a  territory  not  fit  for 
admission  at  the  time,  but  to  be  admitted  as  soon  as  its  popula- 
tion would  entitle  it  to  admission.  It  is  acquired  to  become  a 
State,  and  not  to  be  held  as  a  colony  and  governed  by  Congress 
with  absolute  authority;  and  as  the  propriety  of  admitting  a  new 
State  is  committed  to  the  sound  discretion  of  Congress,  the  power 
to  acquire  territory  for  that  purpose,  to  be  held  by  the  United 
States  until  it  is  in  a  suitable  condition  to  become  a  State  upon 
an  equal  footing  with  the  other  States,  must  rest  upon  the  same 
discretion." 

So,  likewise,  it  will  be  found  that  the  various  opinions  delivered 
in  this  case  by  the  other  members  of  the  court,  concurring  and 
dissenting,  are  concerned  rather  with  the  limitations  of  the  powers 
of  government  of  annexed  territory,  than  with  the  extent  of  the 
power  to  acquire.  We  shall  consider  this  phase  of  the  question 
in  another  chapter. 


Power  of  United  States  to  Acquire  Territory.     337 

§  150.  Conclusions. 

Concerning,  the  validity  of  this  claim  that  the  Constitution 
looks  to  a  Union  composed  only  of  States  and  potential  States, 
this  much  may  be  granted:  Beyond  all  reasonable  doubt  those 
who  framed  and  adopted  the  federal  Constitution  did  not  antici- 
pate, and  therefore  cannot  be  said  deliberately  to  have  provided 
fur,  the  time  when  the  United  States  should  extend  its  sovereignty 
over  territories  not  intended  ultimately  for  statehood.  Xor  can 
it  be  said  that  a  different  view  was  held  upon  this  point  by 
practically  any  one  until  comparatively  recent  times.  But  in 
admitting  this,  the  conclusion  that  the  annexation  of  such  terri- 
tory was  an  unconstitutional  act  does  not  follow.  For  in  the 
first  place,  as  has  been  repeatedly  declared  by  the  Supreme  Court, 
it  is  not  enough  to  say  that  a  particular  case  was  not  in  the  minds 
of  those  who  framed  and  adopted,  the  Constitution  in  order  to 
hold  an  act  unconstitutional.  One  must  go  further  and  sliow  that 
had  the  particular  case  been  suggested  to  those  framers  and 
adopters  of  the  Constitution,  they  would  so  have  modified  its 
language  as  to  exclude  it.20  In  the  second  place,  even  were  this 
principle  of  constitutional  construction  not  sufficiently  broad  to 
uphold  the  federal  power  in  question,  there  would  be  applicable 
two  principles,  each  of  which  would  prevent  the  Supreme  Court 
from  passing  upon  this  point.  The  first  of  these  principles  is  the 
one  elsewhere  mentioned  that  the  question  of  de  facto  and  de  jure 
reignty  is  one  regarding  which  the  courts  hold  themselves 
brand  by  the  del  emanation  of  the  executive  and  legislative 
1 'ranches  of  government;  the  second  is  that  the  motive  of  an  act, 
except  for  the  purpose  of  solving  an  ambiguity  in  its  application, 
is  not  a  proper  subject  for  judicial  examination,  and  that,  there- 
tore,  in  the  case  of  an  annexation  of  territory,  it  would  not  be 
proper  for  the  court  to  seek   to  learn  whether  or  not  ultimate 

-•;  -  The  case  being  within  the  words  of  the  rule,  must  lie  within  its  opera- 
tions likewise,  unless  there  be  something  within  its  literal  construction 
so  obviously  absurd  or  mischievous,  or  repugnant  to  the  general  spirit  of 
that  instrument  as  to  justify  tho-e  who  expounded  the  Constitution  in 
making  it  an  exception."  Dartmouth  College  v.  Woodward.  4  Wh.  518;  4 
L.  ed.  62U. 

22 


338  United  States  Constitutional  Law. 

statehood  was  intended  to  be  granted  the  lands  and  peoples  ob- 
tained. Indeed,  as  we  have  seen,  as  regards  the  contiguous  con- 
tinental territories  of  the  United  States,  it  has  been  uniformly 
held  that  the  grant  to  them  of  statehood  lies  wholly  within  the 
discretion  of  Congress,  and  that  no  legal  means  exist  for  com- 
pelling action  should  that  body  arbitrarily  refuse  for  an  indefinite 
length  of  time  to  grant  this  privilege  to  a  deserving  territory. 

The  question  whether  or  not  territory  not  contiguous  to  the 
other  territory  of  the  United  States  may  be  annexed  is  very 
similar  to  the  one  just  discussed  and  may  be  answered  in  much 
the  same  manner.  For  this  purpose  we  may  borrow  the  words  of 
the  report  of  the  Committee  favoring  the  annexation  of  Hawaii : 
"  The  fact  that  territory  is  contiguous  or  noncontiguous  is  to  be 
considered  in  reference  to  the  policy  or  expediency  of  annexation, 
but  it  is  submitted  that  both  on  principle  and  precedent  there  is 
all  the  constitutional  power  necessary  to  accomplish  annexation 
in  any  case  where  annexation  is  deemed  to  be  to  the  interest  of  this 
country.  The  fact  that  territory  is  contiguous  or  noncontiguous 
can  have  no  bearing  upon  the  constitutionality  of  its  acquisition ; 
but  simply  goes  to  affect  the  value  of  the  territory  proposed  to  be 
annexed.  On  general  principles,  if  it  is  contiguous,  it  is  more 
easily  governed  and  defended.  But  whether  this  is  so  or  not 
depends  upon  circumstances.  In  these  days  distance  is  not  a 
matter  of  miles,  but  of  hours.  When  California  was  annexed  it 
was  two  months  distant  from  the  centre  of  civilization  in  the 
United  States.  Honolulu  to-day  lies  only  ten  and  a  half  days 
from  Washington.  As  to  the  arguments  presented  in  favor  of 
the  unconstitutionality  of  the  annexation  of  noncontiguous  terri- 
tory, it  is  submitted  that  because  our  forefathers  of  1776  did  not 
discuss  or  contemplate  any  given  proposition  is  no  reason,  con- 
stitutional or  otherwise,  why  their  children  should  not  discuss 
and  contemplate  any  and  every  problem  which  is  presented  to 
them  in  1S97  upon  its  merits,  whether  their  ancestors  ever  heard 
of  such  subject  or  not.  It  is  further  submitted  that  the  precedents 
in  United  States  history  are  all  against  the  unconstitutionality  of 
the  annexation  of  noncontiguous  territory.     Alaska  is  separated 


Power  of  United  States  to  Acquire  Territory.     339 

from  the  United  States  by  a  vast  foreign  territory.  Midway 
Island  is  approximately  three  thousand  miles  from  the  American 
coast  The  Aleutian  Islands,  reaching  almost  to  the  Asiatic  coast, 
extend  twelve  hundred  miles  west  of  Alaska,  and  the  guano 
islands  are  scattered  all  over  the  Pacific  and  the  Caribbean 
Sea."  27 

§  151.  The   Right  to  Annex   Based  on  the  Treaty  and  War- 
Making  Powers. 

As  has  been  incidentally  indicated  in  the  preceding  pages,  the 
Supreme  Court  has  held  that  whether  or  not  the  right  to  admit 
States  into  the  Union  carries  with  it  the  power  to  acquire  new 
territory,  this  power  is  derivable  from  the  authority  of  the  Gen- 
eral Government  to  declare  and  carry  on  war,  and  to  enter  into 
treaties.  This  it  has  repeatedly  declared,  both  in  earlier  cases 
and  in  the  recent  so-called  Insular  Cases. 

In  American  Insurance  Co.  v.  Canter28  Marshall  says,  without, 
apparently,  deeming  an  argument  necessary :  "  The  Constitution 
confers  absolutely  upon  the  government  of  the  Union  the  power 
of  making  war  and  of  making  treaties ;  consequently  that  govern- 
ment possesses  the  power  of  acquiring  territory,  either  by  conquest 
or  treaty."  In  Fleming  v.  Page28  Taney  says:  "The  United 
States  .  .  .  may  extend  its  boundaries  by  conquest  or  treaty, 
and  may  demand  the  cession  of  territory  as  the  condition  of 
peace,  in  order  to  indemnify  its  citizens  for  the  injuries  they 
have  suffered,  or  to  reimburse  the  government  for  the  expenses 
of  the  war."'  In  Stewart  v.  Kahn,30  the  court  say:  "The  war 
power  and  the  treaty-making  power  each  carries  with  it  authority 
to  acquire  new  territory."  And  in  United  States  v.  Huckabee31 
it  is  declared :  "  Power  to  acquire  territory  either  by  conquest 
or  treaty  is  vested  by  the  Constitution  in  the  United  States." 

27  Sen.  Rpt.  681.  55th  Cong.,  2d  Sess.,  pp.  47,  48. 

28  1  Pet.  511;   7  L.  ed.  242. 
20  9  How.  603;   13  L.  ed.  276. 
30  11   Wall.  403:   20  L.  ed.  176. 
3i  16  Wall.  414;  21  L.  ed.  467. 


United  States  Constitutional  Law. 

It  i3  to  be  observed  that  in  none  of  these  cases  is  tkere  any 
argument  to  show  just  why,  and  in  what  manner,,  the  acquiring 
of  the  foreign  territory  is  a  necessary  or  proper  means  by  which 
war  may  be  carried  on,  or  treaties  entered  into.  In  fact  it  will 
be  seen  that  the  acquiring  of  foreign  territory  has  been  treated 
as  a  result  incidental  to,  rather  than  as  a  means  for,  the  carrying 
on  of  war  and  the  conducting  of  foreign  relations. 

This  leads  us  to  the  consideration  of  the  doctrine  which,  con- 
stitutionally speaking,  appeals  to  the  author  as  the  soundest  mode 
of  sustaining  the  power  of  the  United  States  to  acquire  territory, 
as  well  as  the  one  which,  in  application,  affords  the  freest  scope 
for  its  exercise.  According  to  this  doctrine,  the  right  to  acquire 
territory  is  to  be  searched  for  not  as  implied  in  the  power  to 
admit  new  States  into  the  Union,  or  as  dependent  speciiically 
upon  the  war  and  treaty  powers,  but  as  derived  from  the  fact 
that  in  all  relations  governed  by  the  principles  of  International 
Law  the  General  Government  may  properly  be  construed  to  have, 
in  the  absence  of  express  prohibitions,  all  the  powers  possessed 
generally  by  States  of  the  WorleL  This  doctrine  thus  is  that  the 
control  of  foreign  relations  being  exclusively  vested  in  the  United 
States,  that  government  has  in  the  exercise  of  this  jurisdiction 
the  same  power  to  annex  foreign  territory  that  is  possessed  by 
other  sovereign  States.  The  argument  in  support  of  this  doc- 
trine has  already  been  given  in  Section  36  of  this  treatise. 

In  one  instance  at  least,  the  Ignited  States  has  acquired  terri- 
tory under  an  authority  which  could  not  be,  and  was  not  alleged 
to  be,  derived  from  the  treaty-making  power  or  from  any  other 
specific  express  power, -but  was  upheld  by  the  Supreme  Court  as 
based  upon  the  general  sovereignty  of  the  nation  in  all  that  falls 
within  the  field  governed  by  international  law. 

In  1850  Congress,  by  a  statute  which  was  re-enacted  in  the 
Revised  Statutes,  declares  that  whenever  any  citizen  of  the  United 
States  shall  discover  a  deposit  of  guano  on  any  island,  rock,  or 
key  not  within  the  lawful  jurisdiction  of  any  other  government, 
and  shall  take  possession  thereof,  such  island,  rock,  or  key  may, 
at  the  discretion  of  the  President,  "  be  considered  as  appertaining 


Power  of   United  States  to  Acquire  Territory.     :>41 

to  the  United  States.''  Furthermore,  the  aet  goes  on  to  deelare 
all  crimes  committed  on  such  island,  rock,  or  key  to  bepraif&able 
according  to  United  States  law  in  the  federal  courts.  Upon  one 
Junes  being  eonvicted  of  murder  under  the  provisions  of  this 
statute  he  took  an  appeal  to  the  Supreme  Court  upon  the  ground 
that  the  federal  law  and  federal  court  could  not  take  cognizance 
of  acts  committed  on  the  island  an  question  because  that  island 
HW  not  constitutionally  a  pan  of  the  United  States.  In  over- 
ruling this  plea  the  Supreme  Court  spoke  as  follows:  "By  the 
law  of  nitiona,  recognized  by  all  civilized  States,  dominion  of 
new  territory  may  l>e  acquired  by  discovery  and  occupation,  as 
well  as  by  cession  or  conquest;  and  when  citizens  or  subjects  of 
one  natiun,  in  its  name  and  by  its  authority  or  with  its  assent, 
take  and  hold  actual,  continuous,  and  useful  possession  (although 
only  for  the  purpose  of  carrying  on  a  particular  business,  as  catch- 
ing and  curing  fish, .or  working  mines)  of  territory  unoccupied 
by  any  other  government  or  its  citizens,  the  nation  to  which  they 
belong  may  exerei-e  such  jurisdiction  and  for  such  period  as  it 
sees  fit  over  territory  so  acquired.  This  principle  affords  ample 
warrant  for  the  legislation  of  Congress  concerning  Guano  Island. 
.  .  .  "Who  is  the  sovereign,  dc  jure  or  de  fncio,  of  a  territory 
is  not  a  judicial,  but  a  political  question,  the  determination  of 
which  by  the  legislative  and  executive  departments  of  any  govern- 
ment conclusively  binds  the  judges,  as  well  as  all  other  officers, 
citizens,  and  subjects  of  that  government.  This  principle  has 
always  been  upheld  by  this  court,  and  has  been  affirmed  under 
a  great  variety  of  circumstances."  "'~ 

This  case  thus  not  only  practically  upheld  the  Tight  of  the 
United  States  to  acquire  territory  by  discovery  and  occupation, 
but  applied  the  principle  that  the  United  States  may  ejaereise  a 
power  not  enumerated  in  the  Constitution,  provided  it  be  an  inter- 
national power  generally  possessed  by  sovereign  States 

Bffmefl  v.  United  Stat*'-.  137  I".  S.  2M-;  11  Sup.  ft.  "Rep.  SO :  34  T,.  ed.  691. 

33  A  clear  statement  of  the  power  of  the  United  Spates  to  annex  territory 
because  of  it«  national  sovereignty  WM  made  try  Sen  at  err  Foraker.  in  the 
"United  States  Senate  July  1.  1898.  in  a  dehate  with  reference  to  the  an- 
nexation   of   Hawaii.      Speaking   of    the    original    thirteen    State*    he  fore  "they 


342  United  States  Constitutional  Law. 

§  152.  Power  of  the  United  States  to  Alienate  Territory. 

The  subject  will  be  discussed  in  Chapter  XXXV  of  this  treatise. 

came  into  the  Union,  he  said:  "Each  one  of  those  sovereign  States  had 
every  power  that  sovereignty  enjoys  ordinarily,  and  among  the  powers  so 
enjoyed  by  each  one  of  the  sovereign  States  was  the  power  to  make  treaties 
with  foreign  nations,  and  any  kind  of  a  treaty  it  might  choose  to  make, 
because  there  was  no  restriction  unless  by  itself  upon  the  exercise  of  that 
power.  It  could  make  war;  it  could  make  a  treaty  for  the  acquisition  of 
territory;  it  could  annex  in  any  way  it  saw  fit  to  annex.  But,  Mr.  President, 
no  Senator  will  contend  here  that  any  State  in  this  Union  has  that  power 
now.  That  power  has  been  lost  to  each  and  every  State  of  the  Union.  As 
the  price  for  coming  into  the  Union,  it  was  required  to  surrender  it.  The 
Constitution  of  the  United  States  prohibits  to  the  States  the  exercise  of  the 
treaty-making  power  with  foreign  nations.  It  prohibits  all  kinds  of  trans- 
actions on  the  part  of  States  with  foreign  nations.  No  State  could  acquire 
territory  by  treaty  in  any  other  manner.  Therefore  each  one  of  the  States 
in  the  Union  has  surrendered  that  power  of  sovereignty.  No  one  of  them 
has  it.  Are  we  to  be  told  that  that  inherent  power  of  sovereignty,  which 
every  State  enjoyed  before  it  came  into  the  Union,  has  been  lest  to  the  States 
and  has  not  been  given  to  any  other  power?  What  has  become  of  it?  Where 
has  it  gone?  Our  contention  is  that  when  to  the  States  was  denied  this 
power,  which  they  had  a  right  to  exercise  as  a  sovereign  power,  it  went  by 
implication  to  the  General  Government  among  the  implied  powers,  and  it 
is  not  any  "  higher  law."  It  seems  to  me  it  is  but  the  necessary  and  legiti- 
mate result  of  a  fair  construction  of  the  provisions  of  the  Constitution." 

This  theory  has  been  declared  by  several  publicists,  and  in  a  number  of 
obiter  dicta,  of  the  Supreme  Court.  Thus  Magoon  in  his  Report  to  the 
War  Department  on  the  "  Legal  Status  of  the  Territory  and  Inhabitants  of 
the  Islands  Acquired  by  the  United  States  During  the  War  with  Spain,"  says: 
"The  United  States  derives  the  right  to  acquire  territory  from  the  fact  that 
it  is  a  nation;  to  speak  more  definitely,  a  sovereign  nation.  Such  a  nation 
has  an  inherent  right  to  acquire  territory,  similar  to  the  inherent  right  of 
a  person  to  acquire  property."  So  also  Mr.  Charles  A.  Gardner  declares: 
"  The  nation  needs  no  express  grant  of  power  for  any  international  act.  .  .  . 
The  right  to  acquire  territory  irrespective  of  its  situs,  contiguous  or  foreign, 
by  conquest,  treaty,  purchase  or  discovery,  is  an  acknowledged  and  well 
established  attribute  of  sovereignty  and  has  been  exercised  by  sovereigns  from 
the  beginning  of  recorded  history.  No  one  pretends  that  the  right  is  specifi- 
cally enumerated  in  the  Constitution.  Hence  it  remains  an  attribute  of  the 
sovereign  people,  and  Congress  and  the  President,  the  sole  agents  and  trus- 
tees of  that  sovereignty,  have  exclusive  and  unrestricted  power  to  exercise 
it.  I  advance  the  proposition  with  deference  that  this  right  is  itself  a 
primary  and  substantive  attribute  of  sovereignty,  as  is  the  right  of  national 
existence  or  self-defence;  and  I  shall  regard  it  in  this  discussion  as  the 
primary  and  fundamental  authority  for  territorial  expansion."  (Pamphlet 
entitled  "  Our  Right  to  Acquire  and  Hold  Foreign  Territory."   Published  1899.) 


Power  of  United  States  to  Acquike  Territory.  343 

For  an  excellent  argument  for  the  support  of  the  position  here  taken  see 
also  the  prize  essay  of  Mr.  \Y.  H.  Bikle,  entitled  "  The  Constitutional  Power 
of  Congress  Over  the  Territory  of  the  United  States,"  and  published  as  a 
supplement  to  the  American  Law  Register  for  August,  1901.  See  also  Butler, 
"  The  Treaty -Making  Power  of  the  United  States."  Butler  declares  hia 
opinion  to  be:  ''That  the  treaty-making  power  of  the  United  States,  as 
vested  in  the  Central  Government,  is  derived  not  only  from  the  powers  ex- 
pressly conferred  by  the  Constitution,  but  that  it  is  also  possessed  by  that 
g  .vernment  as  an  attribute  of  sovereignty,  and  that  it  extends  to  every 
subject  which  can  be  made  the  basis  of  negotiation  and  contract  between 
any  of  the  sovereign  powers  of  the  world,  or  in  regard  to  which  the  several 
States  of  the  Union  themselves  could  have  negotiated  and  contracted  if  the 
Ci  n-titution  had  not  expressly  prohibited  the  States  from  exercising  the 
treaty-making  power  in  any  matter  whatever  and  vested  that  power  ex- 
clusively in,  and  expressly  delegated  it  to,  the  Federal  Government." 


CHAPTER  XXIII. 

THE  MODES  IX  WHICH,  AXD  PURPOSES   FOR  WHICH,  TERRITORY 
MAY   BE  ACQUIRED   BY  THE   UNITED    STATES. 

§  153.  Constitutional  Modes  of  Acquiring  Territory. 

Having  shown  the  constitutional  power  of  the  United  States 
to  acquire  territory  whether  by  treaty,  conquest,  or  discovery  and 
occupation,  we  now  approach  the  question  as  to  the  modes  by 
which  this  federal  authority  may  be  exercised. 

A  history  of  the  territorial  expansion  of  the  United  States 
shows  that  territories  have  been  annexed  in  three  different  ways: 
(1)  by  statute,  (2)  by  treaty,  and  (3)  by  joint  resolution. 

The  process  of  extending  American  sovereignty  by  simple 
statute  and  executive  action  authorized  thereby  was  illustrated, 
as  we  have  just  seen,  in  the  case  of  the  Guano  Islands.  The 
annexation  of  territory  by  treaty  has  been  the  method  most  usually 
employed.  The  Louisiana  Territory,  Florida,  Alaska,  the  Mexi- 
can cessions,  the  Samoan  Islands,  Porto  Rico,  and  the  Philippines 
were  obtained  in  this  manner.  The  constitutionality  of  this  mode 
of  acquisition  has  already  been  discussed. 

§  154.  Annexation  by  Joint  Resolution. 

In  two  instances,  that  of  Texas  in  1845,  and  Hawaii  in  1898, 
the  sovereignty  of  the  United  States  has  been  extended  over  new 
territory  by  means  of  a  Joint  Resolution  of.  the  Houses  of  Con- 
gress. In  the  case  of  Texas  an  attempt  had  been  made  to  annex 
the  State  by  treaty,  but  this  effort,  requiring  a  two-thirds  favor- 
able vote  in  the  Senate,  had  failed.  Thereupon  the  same  end 
was  secured  by  a  Joint  Resolution  which  needed  but  a  simple 
majority  vote  in  each*  of  the  two  branches  of  the  national  legis- 
lature, with,  of  course,  the  approval  of  the  President.  This  reso- 
lution provided  that  "  Congress  doth  consent  that  the  territory 
properly  included  within  and  rightfully  belonging  to  the  Republic 
of  Texas  may  be  erected  into  a  new  State  to  be  called  the  State 

[344] 


Modes  axd  Pi-eposes  run    ijogtrarna  Tebeitoby.      345 

of  Texas  with  a  republican  form  of  government  to  be  adopted  by 
the  people  of  said  republic,  by  deputies  in  convention  assembled, 
with  the  consent  of  the  existing  government,  in  order  that  the 
same  may  be  admitted  as  one  of  the  States  of  the  Union."  Upon 
Xesas  taking  the  action  called  for  by  this  clause,  Congress  later 
by  Joint  Resolution  declared  Texas  one  of  the  States  of  the  Ameri- 
can Union. 

The  peculiarity  of  the  annexation  of  this  State  was  not  simply 
that  it  came  under  American  sovereignty  by  Joint  .Resolution 
but  that  it  became  at  once  one  of  the  States  of  the  Union,  and 
thus  never  had  the  transitional  territorial  status.  This  fact, 
indeed,  gave  additional  constitutional  support  to  the  action  of 
Congress  in  the  matter,  for  to  that  body  is  given  by  the  Constitu- 
tion the  right  to  admit  new  States  into  the  Union,  and,  therefore, 
its  admission  of  Texas  to  fellowship  with  other  American  com- 
monwealths might  easily  be  construed  as  a  legitimate  exercise  of 
that  power. 

The  acquisition  of  the  Hawaiian  Islands  was  another  instance 
of  the  extension  of  the  United   States  sovereignty  by  a  simple 
Joint  Resolution  of  the  two  branches  of  Congress.     In  this  <■ 
however,  the  islands  were  not,  as  was  Texas,  admitted  as  a  State 
or  States  of  the  Union,  but  .were  simply  annexed  as  a  territory. 

The  constitutionality  of  the  annexation  of  Hawaii,  by  a  simple 
legislative  act,  was  strenuously  contested  at  the  time  both  in  Con- 
gress and  by  the  press.  The  right  to  annex  by  treaty  was  not 
denied,  bat  it  was  denied  that  this  might  be  done  by  a  simple 
legislative  act.  The  incorporation  of  one  sovereign  State,  such  as 
was  Hawaii  prior  to  annexation,  in  the  territory  of  another,  is, 
it  was  argued,  essentially  a  matter  falling  within  the  domain  of 
international  relations,  and,  therefore,  beyond  the  reach  of  legis- 
lative acts.  Only  by  means  of  treaties,  it  was  asserted,  can  the 
relations  between  Stale-  be  governed,  for  a  legislative  act  is  neces- 
sarily without  extraterritorial  force  —  confined  in  its  operation 
to  the  territory  of  the  State  by  whose  legislature  it  is  enacted.  To 
meet  this  paint  Senator  !•'«, raker  aigued  that  though  a  treaty 
may  be  the  proper  mode  for  annexing  a  portion  of  the  territory 


346  United  States  Constitutional  Law. 

of  another  State,  it  is  inappropriate  when  an  entire  State  is 
annexed  by  another.  "  I  agree,"  he  said,  "  with  Senators  on  the 
other  side  that  a  treaty  is  a  contract  —  that  has  been  your  con- 
tention throughout  —  until  the  treaty  has  been  signed  on  both 
sides.  The  very  minute  that  is  done  one  of  the  parties  is  gone, 
and  there  is  no  continuing  contract.  Therefore  it  is  simply  a 
cession  on  their  part  and  an  acceptance  on  ours,  and  it  might  be 
done  just  as  well  by  legislation  as  otherwise." 

In  the  report  made  March  1G,  1898,  by  the  Senate  Committee 
on  Foreign  Relations1  in  favor  of  the  Joipt  Resolution  of  Annexa- 
tion, the  annexation  of  Texas  was  cited  as  a  precedent  and  in 
addition  the  assertion  made  that  for  annexation  the  consent  of 
the  government  of  the  annexed  territory  is  needed  but  not,  neces- 
sarily, that  of  its  populace.2 

i  Senate  Keport  681,  55th  Cong.,  2d  Sess. 

2  "  This  Joint  Resolution  [annexing  Texas],"  the  Committee  declare  "  clearly 
establishes  the  precedent  that  Congress  has  the  power  to  annex  a  foreign 
State  to  the  territory  of  the  United  States,  either  by  assenting  to  a  treaty 
of  annexation  or  by  agreeing  to  articles  of  annexation  or  by  act  of  Congress 
based  upon  the  consent  of  such  foreign  government  obtained  in  any  au- 
thentic way.  No  exercise  of  power  could  be  more  supreme  than  that  under 
which  Texas  was  annexed  to  the  United  States,  either  as  to  its  scope  or 
the  manner  of  the  annexation  or  the  choice  of  conditions  upon  which  Congress 
would  merge  the  sovereignty  of  an  independent  republic  into  the  supremacy 
of  the  United  States.  The  act  also  establishes  the  fact  that  a  treaty  with 
a  foreign  State  which  declares  the  consent  of  such  State  to  be  annexed  tc 
the  United  States,  although  it  is  rejected  by  the  Senate  of  the  United  States, 
is  a  sufficient  expression  and  authentication  of  the  consent  of  such  foreign 
State  to  authorize  Congress  to  enact  a  law  providing  for  annexation,  which, 
when  complied  with,  is  effectual  without  further  legislation,  to  merge  the 
sovereignty  of  such  independent  State  into  a  new  and  different  relation  to 
the  United  States  and  toward  its  own  people.  It  further  establishes  the 
fact  that  Congress,  in  legislating  upon  the  question  of  the  annexation  of  a 
foreign  State,  rightfully  acts  upon  the  consent  of  such  State,  as  the  sovereign 
representative  of  its  people,  and  that  the  power  of  Congress  to  complete 
the  annexation  of  such  foreign  State  depends  alone  upon  the  sovereign  will  and 
consent  of  such  State,  given  and  expressed  through  its  organized  tribunals. 
It  further  establishes  the  fact  that  Congress  cannot  acquire  the  right  or 
jurisdiction  to  annex  a  foreign  and  independent  State  through  a  vote  of  a 
majority  of  its  people,  in  opposition  to  the  will  of  its  constituted  au- 
thorities. It  is  the  constitutional  power  of  Congress  that  operates  to  annex 
foreign   territory.     Such  a   proceeding  on  the   part  of   Congress   as   the   sub- 


Modes  and  Purposes  for  Acquiring  Territory.      347 

The  assertions  here  made  by  the  Committee  that  the  annexation^ 
of  Texas  constituted  a  precedent  for  annexation  by  legislative  act, 
the  consent  of  the  constituted  governmental  authorities  of  the 
annexed  territory  being  obtained,  is  open  to  question.  For  it 
it  will  be  remembered  that  Texas  was  admitted  directly  into  the 
Union  as  a  State,  and,  therefore,  its  admission  could  be  upheld 
as  an  exercise  of  the  power  given  to  Congress  and  the  President 
to  admit  new  States  into  the  Union. 

§  155.  Consent  of  Inhabitants  of  Annexed  Territory  not  Re- 
quired. 
As  to  the  question  whether  it  be  necessary  to  obtain  the  con- 
sent of  the  inhabitants  of  the  territories  to  be  annexed,  it  may 
be  said  that  this  is,  or  may  be,  a  matter  of  justice  and  political 
expediency  but  not  of  legal  necessity.  The  act  of  annexation 
being,  ex  hypothesi,  legislative,  its  legal  force  is  derived  from 
the  body  which  enacts  it,  and  it  would  be  an  error  to  hold  its  legal 
force  necessarily  dependent  upon  a  consent  obtained  from  some 
other  source.  There  would,  of  course,  be  no  legal  objection  to 
Congress  providing,  should  it  see  fit,  that  the  going  into  effect  of 
an  act  of  annexation  should  be  dependent  upon  its  approval  by 
the  inhabitants  of  the  territory  to  be  annexed,  just  as  in  its 
"  enabling  acts "  for  the  admission  of  Territories  as  States,  or 
in  many  of  its  acts  with  reference  to  the  Indians,  it  provides  that 
t^e  consent  of  those  directly  concerned  shall  be  obtained.  But 
this  is  not  a  matter  of  legal  necessity.  It  is  not  a  division  or  a 
delegation  of  legislative  power,  either  of  which  would  be  neces- 
sarily unconstitutional. 

mission  of  the  question  to  vote  of  the  people  of  such  a  State  would  only 
create  disorder  and  revolution  in  a  foreign  State  applying  through  its  con- 
stituted authorities  for  admission  into  the  United  States.  This  important, 
clear,  and  far-reaching  precedent  established  in  the  annexation  of  the 
Republic  of  Texas  is  a  sufficient  guide  for  the  action  of  Congress  in  the 
passage  of  the  Joint  Resolution  herewith  reported.  If,  in  the  judgment  of 
Congress,  such  a  measure  is  supported  by  a  safe  and  wise  policy,  or  is  baaed 
upon  a  national  duty  that  we  owe  to  the  people  of  Hawaii,  or  is  necessary 
for  our  national  development  and  security,  that  is  enough  to  justify  annexa- 
tion, with  the  consent  of  the  recognized  government  of  the  country  to  be 
annexed." 


34 S  Uxtted  States  Coxstitttioxal  Law. 

Xor  is  there  any  prineiple  of  public  law,  or  general  precedent 
from  our  own  practice  tkat  requires  the  consent  of  the  population 
of  an  annexed  territory  to  be  obtained.  In  none  of  the  instances, 
except  that  of  Texas,  has  the  United  States  deemed  this  consent 
necessary.3 

As  we  shall  later  see,  it  is  quite  usual  to  provide  in  treaties  of 
annexation  that  the  people  of  the  territories  transferred  shall  have 
an  election  whether  they  shall  become  citizens  of  the  annexing 
State  or  retain  their  old  national  status.  But  this,  of  course,  is 
a  question  quite  distinct  from  the  transfer  of  the  sovereignty  over 
the  territory  in  question. 

Though  it  thus  appears  that  territory  may  be  annexed  with- 
out the  consent  of  the  people,  it  has  not  yet  been  shown  that, 
in  fact,  a  legislative  act  is  constitutionally  adequate  for  the 
purpose  It  has  been  shown  that  the  admission  of  Texas 
by  a  Joint  Resolution  of  Congress  directly  into  the  Union  as  a 
State  could  be  justified  as  an  exercise  of  the  power  given  to 
Congress  by  the  Constitution  to  admit  new  States  into  the  Union, 
and  did  not,  therefore,  establish  a  precedent  for  the  annexation 
of  Hawaii.  To  the  author's  mind  the  annexation  of  Hawaii  by 
legislative  act,  was  constitutionally  justified  upon  the  same  ground 
that  the  extension  of  American  sovereignty  by  statute  over  the 
Guano  Islands  was  justified;  namely,  as  an  exercise  of  a  right 
springing  from  the  fact  that,  in  the  absence  of  express  constitu- 
tional prohibition,  the  United  States  as  a  sovereign  nation  has  all 
the  power  that  any  sovereign  nation  is  recognized  by  international 
law  and  practice  to  have  with  reference  to  such  political  questions 
as  the  annexation  of  territory. 

In  addition  to  this  source  of  authority,  it  would  also  be  quite 
reasonable  to  argue  that  the  annexation  of  the  Hawaiian  Islands 

3  Hawaii  was  annexed  at  the  request  of  the  Hawaiian  Government  nut  it 
cannot  be  said  that  the  United  States  made  a  favoring  popular  vote  a 
condition  precedent  to  annexation.  Upon  the  general  international  practice, 
see  Snli&re,  he  plebiscite  danx  Vannexntion.  1001.  Hall.  International  I.atr, 
4th  ed.,  p.  49.  says:  "The  principle  that  the  wishes  of  a  population  are 
to  be  consulted  when  the  territory  they  inhabit  is  ceded  has  not  been  adopted 
in  international  law.  and  cannot  be  adopted  into  it  until  title  by  conquest 
ha^  disappeared."     Cf.  Moore.  Dir/cst  of  Int.  Lav,  §  S3. 


Mooes  axd  Plkposks  for  Acy liking  Tkebitory.      349 

by  act  of  Congress  was  a  "  necessary  and  proper  "  measure  for 
the  military  defense  of  the  nation,  and  for  the  protection,  and 
increase  of  our  foreign  commerce;  for  there  can  be  no  question 
but  that  a  conceived  military  and  commercial  need  was  one  of 
the  strongest  of  the  motives  that  operated  ta  bring  about  the 
annexation,4 

The  question  as  to  the  constitutionality  of  the  annexation  of 
Texas  or  of  Hawaii  has  never  been  directly  raised  and  passed 
upon  by  the  Supreme  Court  of  the  United  States-  In  fact,  how- 
ever, the  court  has  of  course  impliedly  recognized  the  validity  of 
the  annexation  both  of  Texas  and  Hawaii  in  every  case  in  which 
it  has  enforced  the  laws  of,  or  federal  laws  relating  to,  these  terri- 
tories. That  the  point  has  not  been  directly  raised  is  due  to  the 
principle  uniformly  declared  by  the  court,  when  the  point  has, 
in  other  instances,  been  raised,  that  the  territorial  limits  of  sov- 
ereignty is  a  question  the  decision  of  which  by  the  political 
branches  of  the  government  is  absolutely  binding  upon  its 
judiciary. 

*  The  Committee  (Senate  Report  681,  55th  Cong.,  2d  Sess.)  in  its  report 
favoring  annexation  of  Hawaii,  say:  "As  the  place  —  the  only  one  —  in  the 
North  Pacific  Ocean  for  the  concentration  of  cable  lines;  for  obtaining  coal, 
water,  or  provisions  for  ships;  for  the  repair  of  vessels;  or  for  the  storage 
of  goods  in  bond,  or  otherwise,  from  all  countries  for  the  purposes  of  trade 
around  the  whole  circuit  of  the  coasts  of  the  Pacific  Ocean;  and  with  its 
numerous  i-lands,  the  Hawaiian  Islands  are  the  central  point  of  distribution 
which  can  have  no  possible  competitor.  This  enormous  advantage  to  our 
trade  in  the  islands  and  across  the  Pacific  Ocean  must  be  felt  by  every  in- 
dustry in  the  Unitod  States.  Their  separation  by  a  distance  of  2,000  miles 
fio,n  all  other  lands,  and  their  central  location  as  to  every  point  on  the 
great  arc  of  the  circle  that  extends  from  the  Mexican  border  almost  to  the 
coast  of  Siberia,  the  Pacific  frontier  of  Alaska,  Washington,  Oregon,  and 
California,  makes  the  Hawaiian  Islands  the  most  important  point  in  the 
seas  of  the  Western  Hemisphere  for  the  fostering  and  protection  of  our 
coastwise  and  foreign  commerce.  As  ships  of  war  are  the  necessary  com- 
plement of  ships  of  commerce,  these  great  advantages  belonging  to  the 
geographies]  location  of  the  Hawaiian  Islands  are  equally  indispensable  to 
our  Navy,  u  the  protector  of  our  commerce,  coming  from  both  the  Atlantic 
and  Pacific  Oceans.  On  the  commercial  and  military  views  of  these  questions 
the  opinions  of  merchants  and  navigators,  and  of  our  naval  officers,  as  to 
the  developments  and  necessities  of  the  future  —  as  yet  unknown  —  are  our 
most  intelligent  and  safe=t  guides.  The  Committee  can  appeal  to  these  sources 
of  information  and  safe  forecast  with  the  confidence  that  comes  from  their 
almost  unanimous  agreement." 


350  United  States  Constitutional  Law. 

With  reference  to  the  annexation  of  the  Philippine  Islands, 
the  point  was  raised  by  certain  "Anti-Imperialists "  that  the 
United  States  did  not  get  a  valid  title  for  the  reason  that  Spain 
had  never  reduced  some  of  them  to  possession;  and  that,  as  to 
others,  at  the  time  of  transfer  neither  she  nor  the  United  States 
was  in  effective  occupation.  This,  however,  is  not  a  question  of 
constitutional,  but  of  international  law  —  one,  that  is,  that  a 
foreign  power  might  possibly  raise,  but  which  could  not  be  con- 
sidered in  our  courts. 


CHAPTER  XXIV. 

THE  CONSTITUTIONAL  SOURCES  OF  THE  POWER  OF  CONGRESS  TO 
GOVERN  THE  TERRITORIES. 

§  156.  Power  to  Govern  Territories  not  Questioned. 

There  has  never  been  any  question  as  to  the  power  of  the  United 
States  to  govern  the  territories  possessed  or  acquired  by  it  and 
not  included  within  the  limits  of  any  of  the  individual  States. 
The  only  question  has  been  as  to  the  source  and  extent  of  this 
power.  This  federal  authority  to  govern  has  been  derived  from 
three  sources:  (1)  The  express  power  given  to  Congress  "  to  dis- 
pose of  and  make  all  needful  rules  and  regulations  respecting  the 
territory  or  other  property  belonging  to  the  United  States;'' 
(2)  The  implied  power  to  govern  derived  from  the  right  to 
acquire  territory;  and  (3)  The  power  implied  from  the  fact  that 
the  States  admittedly  not  having  the  power,  and  the  power  having 
to  exist  somewhere,  it  must  rest  in  the  Federal  Government 

All  three  of  these  sources  of  authority  have  been,  at  different 
times,  recognized  by  the  Supreme  Court. 

The  earliest  case  is  that  of  Sere  v.  Pitot,1  decided  in  1810,  with 
reference  to  the  Territory  of  Orleans.  In  his  opinion  Marshall 
says :  "  The  power  of  governing  and  legislating  for  a  territory  is 
the  inevitable  consequence  of  the  right  to  acquire  and  hold  prop- 
erty. Could  this  position  be  contested,  the  Constitution  of  the 
United  States  declares  that  '  Congress  shall  have  the  power  to 
dispose  of  and  make  all  needful  rules  and  regulations  respecting 
the  territory  and  other  property  belonging  to  the  United  States.' 
Accordingly,  we  find  Congress  possessing  and  exercising  the  abso- 
lute and  undisputed  power  of  governing  and  legislating  for  the 
Territory  of  Orleans.  Congress  has  given  them  a  legislature,  an 
executive,  and  a  judiciary,  with  such  powers  as  it  has  been  their 
will  to  assign  to  those  departments  respectively." 

i  6  Cr.  332 ;  3  L.  ed.  240. 

[351] 


352  United  States  Constitutional  Law. 

From  this  it  will  be  seen  that  both  the  first  and  second  sources 
of  authority  mentioned  above  are  relied  upon.  Marshall  himself 
is  plainly  of  the  opinion  that  the  power  to  govern  is  a  necessary 
incident  to  the  power  to  acquire,  hut  indicates  that  this  view  may. 
possibly  be  contested. 

In  American  Insurance  Co.  v.  Canter,2  decided  in  1828,  with 
reference  to  the  government  of  Florida,  Marshall  uses  the  follow- 
ing language:  "  In  the  meantime  [until  it  is  admitted  as  a  StateJ 
Florida  continues  to  be  a  Territory  of  the  United  States ;  gov- 
erned by  virtue  of  that  clause  which  empowers  Congress  '  to  make 
all  needful  rules  and  regulations,  respecting  the  territory,  or  other 
property  belonging  to  the  United  States.'  "  He  adds,  however : 
"  Perhaps  the  power  of  governing  a  territory  belonging  to  the 
United  States  which  has  not,  by  becoming  a  State,  acquired  the 
means  of  self-government,  may  result  necessarily  from  the  facts 
that  it  is  not  within  the  jurisdiction  of  any  particular  State,  and 
is  within  the  power  and  jurisdiction  of  the  United  States.  The 
right  to  govern  may  be  the  inevitable  consequence  of  the  right  to 
acquire  territory.  Whichever  may  be  the  source  whence  the  power 
is  derived,  the  possession  of  it  is  unquestioned." 

Here,  then,  all  three  of  the  possible  sources  of  the  authority  of 
Congress  to  govern  acquired  territory  are  referred  to,  though  the 
two  latter  are  only  suggested  as  possible  sources. 

In  United  States  v.  Gratiot,3  decided  in  1840,  it  is  declared: 
"  The  term  territory  as  here  used  [Art.  TV,  Section  III]  is 
merely  descriptive  of  one  kind  of  property;  and  is  equivalent  to 
the  word  lands.  And  Congress  has  the  same  power  over  it  as 
over  any  other  property  belonging  to  the  United  States ;  and  this 
power  is  vested  in  Congress  without  limitation ;  and  has  been  con- 
sidered the  foundation  upon  which  the  territorial  governments 
rest." 

In  Cross  v.  Harrison,4"  decided  in  1853,  with  reference  to  terri- 
tory acquired  from  Mexico,  the  court  say:  "  The  territory  had 
been  ceded  as  a  conquest,  and  was  to  be  preserved  and  governed 

*1  Pet  511:   7  L.  ed.  242. 
"14  Pet.  526:   10  L.  ed.  573. 
4  16  How.  164;   14  L.  ed.  889. 


Sources  of  Power  of  Congress  to  Govern  Territories.     353 

as  such  until  the  sovereignty  to  which  it  had  passed  had  legislated 
for  it.  That  sovereignty  was  the  United  States,  under  the  Con- 
stitution, by  which  power  had  been  given  to  Congress  to  dispose 
of  and  make  all  needful  rules  and  regulations  respecting  territory 
and  other  property  belonging  to  the  United  States." 

In  United  States  v.  Guthrie,5  decided  in  1854,  Justice  McLean . 
in  a  dissenting  opinion  declared:  "The  power  under  which  the 
territorial  governments  are  organized  is  a  matter  of  some  con- 
troversy. ...  It  seems  to  me  that  the  power  to  govern  a 
territory  is  a  necessary  consequence  of  the  power  given  '  to  make 
all  needful  rules  and  regulations  respecting  the  territory  or  other 
property  belonging  to  the  United  States.'  Xo  one  doubts  the 
power  of  Congress  to  sell  the  public  lands  beyond  the  limits  of 
any  State;  and  this  renders  necessary  the  organization  of  a  gov- 
ernment for  the  protection  of  the  persons  and  property  of  the 
purchasers.  This  is  an  implied  power,  but  it  necessarily  results 
from  the  power  to  sell  the  public  lands."  6 

§  157.  Doctrines  of  the  Dred  Scott  Case. 

This  review  of  decisions  brings  us  chronologically  to  the  Dred 
Seott  case.  Up  to  this  time,  it  must  be  observed,  that  the  chief 
reliance  for  the  power  to  govern  the  territories  had  been  the  grant 
of  authority  contained  in  Article  IV,  Section  III.  It  is  further 
to  be  observed  that  recourse  to  this  source  of  authority  is  subject 
to  the  jx)ssible  limitation  that  it  applies  only  to  territories  pos- 
d  by  the  United  States  at  the  time  the  Constitution  was 
adopted,  and,  therefore,  that  it  cannot  be  appealed  to  for  authority 
to  govern  areas  acquired  since  that  time;  also  that,  over  such 
territories  as  it  is  applicable  to,  it  does  not  grant  to  the  Govern- 
ment general  governing  powers,  but  only  such  as  are  necessary  and 
proper  for  disposing  of  and  regulating  the  public  lands  as  prop- 

5  17  How.  184;   15  L.  ed.  102. 

€  It  is  worthy  nf  note.  that,  though  McLean  relies  upon  an  express  grant 
of  power  given  Congress  in  Article  IV,  Section  III,  he  construes  this  to  be 
not  a  direct  grant  of  governing  power,  but  of  a  power  to  dispose  of  lands 
which  carries  with  it  the  implied  power  to  govern. 

23 


354  United  States  Constitutional  Law. 

erty,  and  preparing  them  and  their  inhabitants  for  admission  to 
the  Union  as  States. 

This  was  the  position  assumed  by  the  majority  of  the  court  in 
the  great  case  of  Scott  v.  Sandford,7  decided  in  1857. 

This  case  we  have  already  discussed  with  reference  to  its  bear- 
ing upon  citizenship  in  the  United  States.  We  have  now  to  ex- 
amine it  in  its  bearing  upon  the  status  of  territories. 

This  suit,  it  will  be  remembered,  was  one  brought  by  Dred  Scott, 
a  negro,  who  had  been  owned  and  held  as  a  slave  in  the  State  of 
Missouri,  had  been  carried  by  his  master  first  to  the  State  of 
Illinois,  where  slavery  did  not  exist,  where  he  remained  for  two 
years;  then  to  the  Territory  then  known  as  Upper  Louisiana,  from 
which  slavery  had  been  excluded  by  the  Missouri  Compromise 
Act  of  1820;  and  finally  brought  back  to  Missouri.  Scott  alleged 
that  by  being  carried  by  his  master  voluntarily  into  the  free  State 
of  Illinois  and  the  free  Territory  he  became  a  free  man.  He 
thereupon  brought  suit  in  the  nature  of  an  action  of  trespass 
against  his  master  for  restraining  his  liberty.  The  suit  was 
brought  in  a  federal  court,  the  jurisdiction  of  the  federal  court 
being  based  upon  a  diversity  of  citizenship,  Scott  claiming  to  be 
a  citizen  of  the  State  of  Missouri,  and  Sandford,  the  defendant, 
being  a  citizen  of  the  State  of  New  York.  The  plea  in  abatement 
that  Scott  was  not  a  citizen  of  a  State  within  the  constitutional 
sense,  has  already  been  considered  in  Chapter  XVII. 

A  plea  in  bar  was  filed  which  set  up  that  Scott  was  still  a 
slave,  and  that,  therefore,  no  legal  injury  had  been  done  him  by 
the  defendant ;  that  when  he  was  taken  into  Illinois  as  a  slave  and 
held  there  as  such,  and  brought  back  by  his  master  to  Missouri, 
his  status  as  fixed  by  the  laws  of  Missouri  was  not  changed ;  and 
that,  as  for  his  being  carried  into  the  free  Territory  of  Upper 
Louisiana,  Congress  had  had  no  constitutional  power  to  exclude 
slavery  therefrom,  as  it  had  attempted  to  do  by  the  Act  of  1820. 
It  was  in  passing  upon  this  last  point  that  the  court  found  it 
necessary  to  examine  as  to  the  constitutional  power  of  the  United 
States  to  acquire  foreign  territory  and  to  govern  it  when  acquired. 

7  19  How.  393;   15  L.  ed.  691. 


Sources  of  Power  of  Congress  to  Govern  Territories.     355 

The  case  was  first  argued  in  1856  and  at  that  time  the  majority 
of  the  court  were  of  the  opinion  that  it  would  not  be  necessary  to 
consider  the  question  whether  or  not  Scott  was  a  citizen,  but 
that  the  case  could  be  decided  upon  its  merits,  namely,  that  Scott, 
being  originally  a  slave,  his  being  carried  into  Illinois  and  Upper 
Louisiana  did  not  affect  his  status  after  his  return  to  Missouri; 
that,  in  other  words,  the  law  of  Missouri  as  determined  by  the 
highest  courts  of  that  State  should  govern  the  Supreme  Court  in 
its  disposition  of  the  case.  This  decision,  it  will  be  observed,  made 
it  unnecessary  for  the  court  to  pass  upon  either  the  question  as  to 
whether  a  free  negro  could  become  a  citizen  of  a  State  in  the  con- 
stitutional sense  of  the  term,  or  the  question  as  to  the  power  of 
Congress  to  prohibit  slavery  in  the  Territories.  To  Justice  Xelson 
was  assigned  the  preparation,  upon  this  basis,  of  the  opinion  of 
the  court,  and  the  individual  opinion  which  he  finally  read  was  the 
one  prepared  for  this  purpose.  In  this  opinion  he  said:  "In 
the  view  we  have  taken  of  the  case,  it  will  not  be  necessary  to 
pass  upon  this  question  [of  citizenship],  and  we  shall  therefore 
pass  at  once  to  an  examination  of  the  case  on  its  merits."  Justice 
Xelson  does  later  say,  however:  "It  is  perhaps  not  unfit  to 
notice  in  this  connection  that  many  of  the  most  eminent  states- 
men and  jurists  of  the  country  entertain  the  opinion  that  this 
provision  of  the  Act  of  Congress  [of  1820],  even  within  the  Terri- 
tory to  which  it  relates,  was  not  authorized  by  any  power  under 
the  Constitution."  But  he  goes  on  to  say  that  whether  it  was 
valid  or  not,  the  act  could  have  no  operation  or  effect  within  the 
limits  of  the  State  of  Missouri,  and  could  not,  therefore,  affect 
the  status  of  the  plaintiff  after  his  return  thither. 

A  second  argument  of  the  case  having  been  asked  for  and  had, 
five  justices  agreed  that  the  plea  in  abatement  was  not  properly 
before  the  court  and  that,  therefore,  the  case  would  have  to  be 
decided  upon  the  merits. 

With  the  judgment  of  the  court  as  to  the  effect  of  the  laws  of 
Congress  governing  the  Territory  of  Upper  Louisiana  and  of  the 
State  of  Illinois  upon  the  status  of  Scott  after  his  return  to 
Missouri  we  are  not  here  concerned.     That  which  does  concern 


3,") 6  United  States  Constitutional  Law. 

us  is  that  six  of  the  nine  justices  held  that  the  power  of  Congress 
over  the  Territories  was  of  such  a  limited  character  as  to  render 
unconstitutional  an  attempt  to  exclude  slavery  from  them. 

The  Chief  Justice,  who  was  among  those  who  took  this  position, 
argued  as  follows :  "  The  counsel  for  the  plaintiff  has  laid  much 
stress  upon  that  article  in  the  Constitution  which  confers  on  Con- 
gress the  power  '  to  dispose  of  and  make  all  needful  rules  and 
regulations  respecting  the  territory  or  other  property  belonging 
to  the  United  States,'  but  in  the  judgment  of  the  court,  that  pro- 
vision has  no  bearing  on  the  present  controversy,  and  the  power 
there  given,  whatever  it  may  be,  is  confined,  and  was  intended  to 
be  confined,  to  the  territory  which  at  that  time  belonged  to,  or  was 
claimed  by,  the  United  States,  and  was  within  their  boundaries 
as-  settled  by  the  Treaty  with  Great  Britain,  and  can  have  no  in- 
fluence upon  a  territory  afterwards  acquired  from  a  foreign  gov- 
ernment. It  was  a  special  provision  for  a  known  and  particular 
Territory,  and  to  meet  a  present  emergency,  and  nothing  more. 
A  brief  summary  of  the  history  of  the  times,  as  well  as  the  care- 
ful and  measured  terms  in  which  the  article  is  framed,  will  show 
the  correctness  of  this  proposition."  8 

•  After  reviewing  the  circumstances  leading  up  to  the  cession  by  the  in- 
dividual States  to  the  Confederacy  of  their  claims  to  western  land*,  and 
after  adverting  to  the  fact  that  the  Confederacy  had  no  constitutional  power 
to  accept  the  giant  or  to  enact  the  Northwest  Ordinance  of  1787  for  its 
gBvernment,  he  snys:  "This  was  the  state  of  things  when  the  Constitution 
«i  the-  United  States  was  formed.  The  territory  ceded  by  Virginia  belonged 
to  the  several  confederated  States  as  common  property,  and  they  had  united 
fe  establishing  in  it  a  system  of  government  and  jurisprudence,  in  order  to 
prepare  rt  for  admission  as  States,  according  to  the  terms  of  the  cession. 
They  were  about  to  dissolve  this  federative  Union,  and  to  surrender  a  portion 
of  their  independent  sovereignty  to  a  new  government,  which,  for  certain  pur- 
poses, would  make  the  people  of  the  several  States  one  people,  and  which 
was  to  be  supreme  and  controlling  within  its  sphere  of  action  throughout 
the  United  States:  but  this  government  was  to  be  carefully  limited  in  its 
powers,  and  to  exercise  no  authority  beyond  those  expressly  granted  by  the 
Constitution,  or  necessarily  to  be  implied  from  the  language  of  the  instru- 
ment, and  the  objects  it  was  intended  to  accomplish  ■  and  as  this  league  of 
States  would,  upon  the  adoption  of  the  new  government,  cease  to  have  any 
power  over  the  territory,  and  the  ordinance  they  had  agreed  upon  be  incapable 
of  execution,  and  a  mere  nullity,  it  was  obvious  that  some  provision  was 
neeewfHrv   to  give  the  new  government  sufficient  power  to  enable  it  to  carry 


SOUKCES  OF  POWEE  OF  C'OXGKESS  TO  GoVEBN   TeEKITOFwIES.        33  . 

It  has  often  been  stated  that  in  this  ease  Chief  Justice  Taney 
and  all  those  Justices  who  agreed  with  him.  held  that  the  United 
States  might  increase  its  territory  only  by  the  admission  of  new 
States.  This  is  not  quite  correct.  These  justices  did,  indeed,  hold 
that  foreign  territory  might  be  acquired  only  for  the  purpose  of 
admitting  new  States;  but  its  annexation  of  areas  with  this  eud 
in  view  they  agreed  might  be  effected  by  an  exercise  of  the  treaty 

into  effect  the  objects  for  which  it  was  ceded,  and  the  compacts  and  agree- 
ments which  the  States  had  made  each  other  in  the  exercise  of  their  power 
of  sovereignty.  It  was  necessary  that  the  lands  should  be  sold  to  pay  the 
wai  debt;  that  a  government  and  system  of  jurisprudence  should  be  main- 
tained in  it;  to  protect  the  citizens  of  the  United  States,  who  would  migrate 
to  the  Territory,  in  their  rights  of  person  and  of  property.  It  was  also 
necessary  that  the  new  government,  about  to  be  adopted,  should  be  author- 
ized to  maintain  the  claim  of  the  United  States  to  the  unappropriated  lands 
in  Xorth  Carolina  and  Georgia,  which  had  "not  then  been  ceded,  but  the 
cession  of  which  was  confidently  anticipated  upon  some  terms  that  would  be 
arranged  (between  the  General  Government  and  these  two  States.  And, 
moreover,  there  were  many  articles  of  value  besides  this  property  in  land, 
such  as  arm?,  military  stores,  munitions,  and  ships  of  war,  which  were  the 
common  property  of  the  States  when  acting  in  their  independent  characters 
as  confederates,  which  neither  the  new  government  nor  any  one  else  would 
have  a  right  to  take  possession  of,  or  control,  without  authority  from  them ; 
and  it  was  to  place  these  things  under  the  guardianship  and  protection  of 
the  new  government,  and  to  clothe  it  with  the  necessary  powers,  that  the 
clause  m  inserted  in  the  Constitution  which  gives  Congress  the  power  'to 
dispone  of  and  make  all  needful  rules  and  regulations  respecting  the  territory 
or  other  property  belonging  to  the  United  States.'  It  was  intended  for  a 
specific  purpose,  to  provide  for  the  things  we  have  mentioned.  It  was  to 
transfer  to  the  new  government  the  property  tl»en  held  in  common  by  Xhe 
States,  and  to  give  to  that  government  power  to  apply  it  to  the  objects  for 
which  it  had  been  destined  by  mutual  agreement  among  the  States  before 
their  league  was  dissolved.  It  applied  only  to  the  property  which  the  States 
held  in  common  at  that  time,  and  has  no  reference  whatever  to  any  territory 
or  other  property  which  the  new  sovereignty  might  afterward-;  itself  aequire. 
The  language  used  in  the  clause,  the  arrangement  and  combination  of  the 
powers,  and  the  somewhat  unusual  phraseology  it  uses,  when  it  speaks  of 
the  political  power  to  be  exercised  in  the  government  of  the  Territory,  all 
indicate  the  design  and  meaning  of  the  clause  to  be  such  as  we  have  men- 
tioned. It  does  not  speak  of  any  Territory,  nor  of  Territories,  but  uses 
language  which,  according  to  it*  legitimate  meaning,  points  to  a  particular 
thing.  The  power  is  given  in  relation  only  to  the  territory  of  the  United 
States  —  that  is.  to  a  Territory  then  in  existence,  and  th»n  known  or  claimed 
as  the  territory  of  the  United  States.  It  bejrins  it*  enumeration  of  powers 
by  that  of  disposing  in  other  words,  making  sale  of  lands,  or  raising  money 


358  United  States  Constitutional  Law. 

making  or  other  powers.  Upon  this  point  Taney  declared: 
"  There  is  certainly  no  power  given  by  the  Constitution  to  the 
Federal  Government  to  establish  or  maintain  colonies  bordering 
on  the  United  States  or  at  a  distance,  to  be  ruled  and  governed 
at  its  own  pleasure;  nor  to  enlarge  its  territorial  limits  in  any 
way,  except  by  the  admission  of  »ew  States.  That  power  is 
plainly  given ;  and  if  a  new  State  is  admitted,  it  needs  no  further 
legislation  by  Congress,  because  the  Constitution  itself  defines 
the  relative  rights  and  powers  and  duties  of  the  State,  and  the 
citizens  of  the  State,  and  the  Federal  Government.  But  no 
power  is  given  to  acquire  a  Territory  to  be  held  and  governed  per- 
manently in  that  character.  .  .  .  The  power  to  expand  the 
territory  of  the  United  States  by  the  admission  of  new  States  is 
plainly  given;  and  in  the  construction  of  this  power  by  all  the 
departments  of  the  government,  it  has  been  held  to  authorize  the 
acquisition  of  territory  not  fit  for  admission  at  the  time,  but  to 
be  admitted  as  soon  as  its  population  and  situation  would  entitle 
it  to  admission.  It  is  acquired  to  become  a  State,  and  not  to  be 
held  as  a  colony  and  governed  by  Congress  with  absolute  author- 
ity; and  as  the  propriety  of  admitting  a  new  State  is  committed 
to  the  sound  discretion  of  Congress  the  power  to  acquire  territory 
for  that  purpose,  to  be  held  by  the  United  States  until  it  is  in  a 
suitable  condition  to  become  a  State  upon  an  equal  footing  with 
the  other  States,  must  rest  upon  the  same  discretion.  It  is  a 
question  for  the  political  department  of  the  government,  and  not 

from  them,  which,  as  we  have  already  said,  was  the  main  object  of  the 
cession,  and  which  is  accordingly  the  first  thing  provided  for  in  the  article. 
It  then  gives  the  power  which  was  necessarily  associated  with  the  disposition 
and  sale  of  the  lands  —  that  is,  the  power  of  making  needful  rules  and 
regulations  respecting  the  Territory.  And  whatsoever  construction  may  now 
be  given  to  these  words,  every  one,  we  think,  must  admit  that  they  are  not 
the  words  usually  emploj'ed  by  statesmen  in  giving  supreme  power  of  legis- 
lation. They  are  certainly  very  unlike  the  words  used  in  the  power  granted 
to  legislate  over  territory  which  the  new  government  might  afterwards  itself 
obtain  by  cession  from  a  State,  either  for  its  seat  of  government,  or  for 
forts,  magazines,  arsenals,  dockyards,  and  other  needful  buildings.  .  .  .  This 
view  of  the  subject  is  confirmed  by  the  manner  in  which  the  present  Govern- 
ment of  the  United  States  dealt  with  the  subject  as  soon  as  it  came  into 
existence." 


Sources  of  Power  of  Congress  to  Govern  Territories.     359 

the  judicial;  and  whatever  the  political  department  of  the  govern- 
ment shall  recognize  as  within  the  limits  of  the  United  States  the 
judicial  department  is  also  bound  to  recognize,  and  to  administer 
in  it  the  laws  of  the  United  States,  so  far  as  they  apply,  and  to 
maintain  in  the  territory  the  authority  and  rights  of  the  govern- 
ment ;  and  also  the  personal  rights  and  rights  of  property  of  in- 
dividual citizens,  as  secured  by  the  Constitution.  All  we  mean  to 
say  on  this  point  is,  that,  as  there  is  no  express  regulation  in  the 
Constitution  defining  the  power  which  the  General  Government 
may  exercise  over  the  person  or  property  of  a  citizen  in  a  territory 
thus  acquired,  the  court  must  necessarily  look  to  the  provisions 
and  principles  of  the  Constitution,  and  its  distribution  of  pow- 
ers, for  the  rules  and  principles  by  which  its  decision  must  be 
governed." 

•  With  the  exception  of  Justice  Curtis,  none  of  the  other  justices 
discussed  at  length  the  source  of  the  power  to  acquire  territory. 
Five  of  the  other  justices,  however,  concurred  with  the  Chief 
Justice  in  holding  the  Act  of  1820  unconstitutional,  and,  there- 
fore, where  they  do  not  expressly  say  so,  may  be  presumed  to 
have  agreed  with  him  as  to  the  source  whence  and  the  purpose  for 
which  foreign  territory  might  be  acquired,  and  as  to  the  restric- 
tion of  the  authority  granted  by  Congress  by  Article  IV,  Section 
III,  to  the  territories  possessed  by  the  United  States  in  1787. 

Justice  Curtis  in  his  dissenting  opinion  declared  that  whatever 
doubt  there  may  have  been  as  to  the  power  of  the  United  States 
to  acquire  additional  territory,  four  precedents  and  several 
judicial  sanctions  had  established  its  existence  beyond  doubt.9 
The  power  to  govern  this  acquired  territory  Curtis  found  in 
Article  IV,  Section  III.10 

^Citing  American  Insurance  Co.  v.  Canter,  1  Pet.  511;  7  L.  ed.  242;  and 
6ere  v.  Pitot,  6  Cr.  332 ;  3  L.  ed.  240. 

w He  said:  ''There  was  to  be  established  by  the  Constitution  a  frame 
-  of  government,  under  which  the  people  of  the  United  States  and  their  posterity 
were  to  continue  indefinitely.  To  take  one  of  its  provisions,  the  language 
of  which  is  broad  enough  to  extend  throughout  the  existence  of  the  govern- 
ment, and  embrace  all  territory  belonging  to  the  United  States  throughout 
all  time,  and  the   purposes  and  objects   of   which  apply   to  all   Territory  of 


360  United  States  Constitutional  Law. 

The  arguments  and  opinions  m  the  Dred  Scott  case  revealed  the 
difficulties  involved  in  a  jrecourse  to  Article  IV,  Section  XII,  for 
the  power  to  govern  acquired  territories,  and,  accordingly,  since 
that  date  we  find  the  Supreme  Court  emphasizing  the  doctrine 
that  the  power  is  implied  in  the  right  to  acquire,  as  well  as  argu- 
able from  the  fact  that  inasmuch  as  the  States  have  no  authority  in 
the  premises  the  Federal  Government  must  have  it.  Thus  in 
United  States  v.  Kagama11  the  court  say:  "The  power  of  Con- 
gress to  organize  territorial  governments,  and  make  laws  for  their 
inhabitants,  arises  not  so  much  from  the  clause  in  the  Constitution 
in  regard  to  disposing  of  and  making  rules  and  regulations  con- 

the  United  States  and  narrow  it  down  to  territory  belonging  to  the  United 
States  when  the  Constitution  was  framed,  while  at  the  same  time  it  is  ad- 
mitted that  the  Constitution  contemplated  and  authorized  the  acquisition, 
from  time  to  time,  of  other  and  foreign  territory,  seems  to  me  to  be  an 
interpretation  as  inconsistent  with  the  nature  and  purpose  of  the  instrument, 
as  it  is  with  its  language,  and  I  can  have  no  hesitation  in  rejecting  it. 
I  construe  this  clause,  therefore,  as  if  it  had  read,  Congress  shall  have  the 
power  to  make  all  needful  rules  and  regulations  respecting  those  tracts  of 
country  out  of  the  limits  of  the  several  States,  which  the  United  States 
have  acquired,  or  may  hereafter  acquire,  by  cessions  as  well  as  of  the  juris- 
dictions as  of  the  soil,  so  far  as  the  soil  may  be  the  property  of  the  party 
making  the  cession,  at  the  time  of  making  it.  It  has  been  argued  that  the 
words  '  rules  and  regulations '  are  not  appropriate  terms  in  which  to  convey 
authority  to  make  laws  for  the  government  of  the  Territory.  But  it  must 
be  remembered  that  this  is  a  grant  of  power  to  the  Congress  —  that  it  is, 
therefore,  necessarily  a  grant  of  power  to  legislate  —  and  certainly,  rules  and 
regulations  respecting  a  particular  subject,  made  by  the  legislative  power 
of  a  country,  can  be  nothing  but  laws.  Nor  do  the  particular  terms  employed, 
in  my  judgment,  tend  in  any  degree  to  restrict  this  legislative  power.  Power 
granted  to  a  legislature  to  make  all  needful  rules  and  regulations  respecting 
the  Territory,  is  a  power  to  pass  all  needful  laws  respecting  it  .  .  .  With- 
out government  and  social  order  there  can  be  no  property;  for  without  law, 
its  ownership,  its  use  and  the  power  of  disposing  of  it  cease  to  exist,  in  the 
sense  in  which  those  words  are  used  and  understood  in  all  civilized  States. 
Since,  then,  this  power  was  manifestly  conferred  to  enable  the  United  States 
to  dispose  of  its  public  lands  to  settlers,  and  to  admit  them  into  the  Union 
as  States,  when  in  the  judgment  of  Congress  they  should  be  fitted  therefor, 
since  these  were  the  needs  provided  for.  since  it  is  confessed  that  government 
is  indispensable  to  provide  for  those  needs,  and  the  power  is,  to  make  all 
needful  rules  and  regulations  respecting  the  Territory.  I  cannot  doubt  +hat 
this  is  a  power  to  govern  the  inhabitants  of  the  Territory,  by  such  laws  as 
Congress  deems  needful,  until  they  obtain  admission  as  States." 
n  118  U.  S.  375;  6  Sup.  Ct.  Eep.  1109;  30  L.  ed.  22S. 


Sources  of  Power  of  Congress  to' Govern  Territories.     361 

earning  the  territory  and  other  property  of  the  United  States,  as 
from  the  ownership  of  the  country  in  which  its  territories  are, 
and  the  right  of  exclusive  sovereignty  which  must  exist  in  the 
National  Government,  and  can  be  found  nowhere  else,"  In  the 
Late  Corporation  of  the  Church  of  Jesus  Christ  v.  United  States12 
the  court  say:  "The  power  of  Congress  over  the  Territories  of 
the  United  States  is  .  .  .  general  and  plenary,  arising  from 
and  incidental  to  the  right  to  acquire  the  territory  itself,  and  from 
the  power  given  by  the  Constitution  to  make  all  needful  rules  and 
regulations  respecting  the  territory  or  other  property  of  the 
United  States,  it  would  be  absurd  to  hold  that  the  United  States 
has  the  power  to  acquire  territory,  and  no  power  to  govern  it 
when  acquired."  Here,  though  Section  III  of  Article  IV  is 
indeed  referred  to,  the  power  to  acquire  is  clearly  emphasized  as 
tiie  source  of  the  power  to  govern.  Finally  in  De  Lima  v.  Bid- 
well,13  one  of  the  so-called  "  Insular  Cases,"  the  court  say:  "  It 
[the  power  to  govern]  is  an  authority  which  arises  not  necessarily 
from  the  territorial  clause  of  the  Constitution,  but  from  the  neces- 
sities of  the  case,  and  from  the  inability  of  the  States  to  act  on 
the  subject." 

12  136  U.  S.  1;  10  Sup.  Ct.  Rep.  792;  34  L.  ed.  478. 

13  182  U.  6.  1;  21  Sup.  Ct.  Rep.  743;  45  L.  ed.  1041. 


CHAPTER  XXV. 

THE  EXTENT  OF  THE  POWER  OF  CONGRESS  TO  GOVERN  THE 

TERRITORIES. 

§  158.  Power  to  Govern  Absolute. 

Since  the  time  when  the  necessity  for  the  exercise  of  the  au- 
thority arose,  there  has  been  almost  no  question  as  to  the  absolute 
power  of  Congress  to  determine  the  form  of  political  and  admin- 
istrative control  to  be  erected  over  the  Territories,  and  to  fix  the 
extent  to  which  their  inhabitants  shall  be  admitted  to  a  participa- 
tion in  their  own  government.  Both  by  legislative  practice  and  by 
judicial  sanction,  the  principle  has  been  from  the  first  asserted 
that  upon  this  matter  the  judgment  of  Congress  is  absolute.  This, 
however,  has  not  been  construed  to  carry  with  it  the  absolute  con- 
trol of  the  federal  legislature  over  the  civil  rights  —  the  private 
rights  of  person  and  property  —  of  the  inhabitants  of  the  Terri- 
tories. The  extent  of  the  power  of  Congress  with  respect  to  these 
will  be  discussed  in  the  next  chapter. 

The  first  act  for  the  government  of  Territories,  the  "  Ordinance 
for  the  Government  of  the  Territory  of  the  United  States  Xorth- 
west  of  the  Ohio  River,"  implied  the  doctrine  that  to  Congress  is 
given  the  complete  discretion  as  to  the  form  of  government  to  be 
supplied,1  and  that  the  inhabitants  of  this  region  are  not,  except 
by  congressional  grant,  entitled  to  local  self-government.  The  act 
provides  that  "as  soon  as  there  shall  be  five  thousand  free  male 
inhabitants,  of  full  age,  in  the  district"  they  shall  receive  au- 
thority to  elect  a  representative  legislative  assembly,  and  that  as 
soon  "  as  may  be  consistent  with  the  general  interest,"  the  terri- 
tory is  to  be  subdivided  into  States,  which  are  to  be  admitted  into 
the  Union  on  an  equal  footing  with  the  original  States.  Until, 
however,  the  Assembly  is  established,  all  governing  power  is 
vested  in  a  governor,  a  secretary  and  a  court  of  three  judges,  all 
nominated  by  the  President  and  appointed  by  and  with  the  consent 

iBy  Act  of  August  7,  1789,  the  first  Congress  under  the  Constitution  re- 
enacted  the  ordinance  of  1787,  with  the  necessary  change  that  the  officers 
provided  for  by  it  should  be  nominated  by  the  President  and  appointed  by 
and  with  the  advice  and  consent  of  the  Senate. 

[362] 


Exteht  of  Power  of  Congress  to  Govern  Territories.     363 

of  the  Senate.  During  this  period,  then,  there  was  to  be  no  local 
self-government  whatever. 

By  the  Act  of  May  26,  1790,  the  Southwest  Territory  was  given 
a  government  in  all  respects  the  same  as  that  erected  for  the  North- 
west Territory. 

By  the  Act  of  October  31,  1803,  passed  for  the  government  of 
the  Louisiana  Territory  purchased  from  France,  the  President 
was  given  full  power  to  take  possession,  using  for  this  purpose 
such  force  as  might  be  necessary,  and  "  that,  until  the  expiration 
of  the  present  session  of  Congress,  unless  provision  for  the  tem- 
porary government  of  the  said  territories  be  sooner  made  by  Con- 
gress, all  the  military,  civil,  and  judicial  powers  exercised  by  the 
officers  of  the  existing  government  of  the  same  shall  be  vested  in 
such  person  and  persons,  and  shall  be  exercised  in  such  manner, 
as  the  President  of  the  United  States  shall  direct,  for  maintaining 
and  protecting  the  inhabitants  of  Louisiana  in  the  free  enjoyment 
of  their  liberty,  property  and  religion." 

A  formal  remonstrance  against  the  autocratic  regime  thus  estab- 
lished, as  being  in  violation  of  the  rights  guaranteed  by  the  treaty 
with  France,  was  presented  in  behalf  of  the  inhabitants  of  the 
Territory  to  the  United  States  Senate,  but  no  question  as  to  the 
constitutionality  of  the  action  was  raised. 

The  Act  of  March  3,  1819,  for  the  taking  possession  and  tem- 
porary government  of  Florida,  was  almost  identical  with  the 
Louisiana  Act  of  1803. 

Without  attempting  to  trace  further  the  legislation  with  refer- 
ence to  the  government  of  the  Territories  it  is  sufficient  to  say 
that  Congress  has  continued  to  the  present  day  uniformly  to  con- 
sider this  subject  one  to  be  dealt  with  absolutely  at  its  own  dis- 
cretion.2 

2  For  legislation  of  Congress  with  reference  to  the  Territories,  see  W.  F.  Wil- 
loughby,  Territories  and  Dependencies  of  the  United  States:  Their  Govern- 
ment and  Administration ;  Farrand,  The  Legislation  of  Congress  for  the  Gov- 
ernment of  the  T(rritories  of  the  United  States;  Organic  Acts  for  the  Terri- 
tories of  the  United  States  with  Notes  Thereon,  Compiled  from  the  Statutes 
at  Large  of  the  United  States;  also  Appendix  Comprising  Other  Matters  Re- 
lating to  the  Gorrrnnient  of  the  Territories.  (Senate  Document,  No.  148, 
56th  Congress,  1st  Sess.) 


oQ4:  United  States  Constitutional  Law. 

Acting  in  pursuance  of  its  powers,  Congress  lias  thus  from 
time  to  time,  as  new  territories  have  been  acquired,  established 
for  them,  by  statutes,  territorial  governments.  The  latest  of  these 
statutes  are  those  establishing  civil  rule  in  Porto  Pico  and  the 
Philippines. 

§  159.  Classes  of  Territorial  Governments. 

Generally  speaking,  it  may  be  said  that  the  governments  thus 
created  have  been  and  are  of  four  kinds. 

First,  there  is  the  class  of  so-called  Unorganized  Territories,  at 
present  consisting  only  of  Alaska.  These  have  no  local  self- 
government  but  are  governed  by  officials  nominated  by  the  Presi- 
dent and  confirmed  by  the  Senate,  and  have  for  their  laws  such 
as  have  been  given  them  hy  Congress.  To  this  class  of  auto- 
cratically governed  territories  should  also  possibly  be  added  the 
Samoan,  "Wake,  Midway,  and  Guano  Islands  which  are  ruled  by 
officers  of  the  military  force  of  the  United  States. 

Second,  there  is  the  whole  class  of  Organized  Territories  that 
has  included  all  of  the  continental  territories  of  the  United  States 
except  Indian  Territory  and  Alaska,  and  at  the  present  time  em- 
braces Xew  Mexico,  Arizona,  and  Hawaii.  The  chief  executive 
and  judicial  officers  of  these  governments  are  nominated  by  the 
President  and  confirmed  by  the  Senate  and  hold  office  for  four 
years.  Their  legislatures  consist  of  two  Houses,  each  elected  by 
those  inhabitants  of  the  territories  who  have  been  given  the  suf- 
frage by  federal  law.  The  law-making  power  of  these  bodies  is 
extended  "by  Congress  u  to  all  rightful  subjects  of  legislation  not 
inconsistent  with  the  Constitutiou  and  laws  of  the  United  States." 
The  laws  passed  in  pursuance  of  this  legislative  authority  are,  of 
course,  not  only  subject  to  scrutiny  in  the  courts  as  to  their  con- 
stitutionality, but  may  be  amended  or  annulled  at  any  time  by  an. 
act  of  Congress. 

Third,  there  is  the  government  of  the  island  of  Porto  Pico 
which  stands  in  a  class  by  itself.  According  to  the  Foraker  Act 
of  April  12,  1900,  its  governor  and  chief  executive  officials  and 
judges  are  nominated  by  the  President   and   confirmed  by  the 


Extent  of  Power  of  Congress  to  Govern  Territories.     365 

Senate,  and  its  legislature  is  composed  of  two  houses,  the  upper 
of  which  consists  of  the  six  chief  executive  officials  and  five  native 
Porto  Kicans,  and  the  lower  of  thirty-five  members  elected  by 
popular  vote. 

Fourthly,  and  finally,  there  is  the  government  of  the  Philip- 
pine Islands  by  means  of  a  Commission  appointed  by  the  Presi- 
dent and  confirmed  by  the  Senate  under  authority  granted  by 
act  of  Congress.  Since  1907  there  has  been  also  a  popularly 
elected  legislative  chamber. 

§  160.  Constitutionality  of  These  Governments. 

The  constitutionality  of  this  legislation  has  never  been 
seriously  questioned.3 

3  In  the  early  case  of  Sere  v.  Pitot  (6  Cr.  332;  3  L.  ed.  240),  decided  in 
1810,  in  its  first  reference  to  the  r ower,  the  Supreme  Court,  without  dissent, 
speaking  through  Marshall,  after  declaring  the  right  of  the  United  States  to 
acquire  and  govern  territory  say:  "  Accordingly  we  find  Congress  possessing 
and  exercising  the  absolute  and  undisputed  right  of  governing  and  legislating 
for  the  Territory  of  Orleans.  Congress  has  given  them  a  legislature,  an 
executive,  and  a  judiciary,  with  such  powers  as  it  has  been  their  will  to 
Egp  to  those  departments  respectively." 

In  American  Insurance  Co.  v.  Canter  ( IPet.  511;  7  L.  ed.  242),  decided  in 
1828,  Marshall,  after  referring  to  certain  provisions  of  the  treaty  by  which 
Florida  was  acquired  from  Spain,  says:  "This  treaty  is  the  law  of  the 
land,  and  admits  the  inhabitants  of  Florida  to  the  enjoyment  of  the  privileges. 
rights,  and  immunities  of  the  citizens  of  the  United  States  .  .  .  They  do 
nut.  however,  participate  in  political  power;  they  do  not  share  in  the  govern- 
ment, till  Florida  shall  become  a  State." 

In  Snow  v.  United  States  (18  Wall.  317;  21  L.  ed.  784),  decided  in  1873. 
the  court  say:  "The  government  of  the  Territories  of  the  United  States 
belongs  primarily  to  Congress;  and  secondarily  to  such  agencies  as  Congress 
may  establish  for  that  purpose.  During  the  term  of  their  pupilage  as 
Territories,  they  are  mere  dependencies  of  the  United  States.  Their  people 
do  not  constitute  a  sovereign  power.  All  political  authority  exercised  therein 
is  derived  from  the  General  Government.  It  is,  indeed,  the  practice  of  the 
anient  to  invest  these  dependencies  with  a  limited  power  of  self-govern- 
ment as  soon  as  they  have  sufficient  population  for  the  purpose.  The  extent 
of  the  power  thus  granted  depends  entirely  upon  the  organic  act  of  Congress 
in  each  case,  and  is  at  all  times  subject  to  such  alterations  as  Congress 
may  see  fit  to  adopt." 

In  the  Dred  Scott  case,  Taney,  though  otherwise  emphasizing  the  limita- 
tions upon  the  power  of  Congress  over  Territories,  concedes  that  it  has  a  full 
discretion  with  reference  to  the  form  of  governments  it  may  establish  over 


3C6  United  States  Constitutional  Law. 

The  plenary  character  of  the  legislative  power  of  Congress  in 
this  respect  is  perhaps  best  stated  in  National  Bank  v.  County  of 
Yankton.4  Chief  Justice  Waite,  speaking  for  the  court,  says: 
"  Congress  may  not  only  abrogate  laws  of  the  territorial  legisla- 
tures, but  it  may  itself  legislate  directly  for  the  local  government. 
It  may  make  a  void  act  of  the  territorial  legislature  valid,  and  a 
valid  act  void.  In  other  words,  it  has  full  and  complete  legis- 
lative authority  over  the  people  of  the  Territories  and  all  the  de- 
partments of  the  territorial  governments.  It  may  do  for  the  Terri- 
tories what  the  people,  under  the  Constitution  of  the  United 
States,  may  do  for  the  States."  Again,  in  Murphy  v.  Ramsay5 
the  court  declare:  "  The  people  of  the  United  States,  as  sover- 
eign owners  of  the  National  Territories,  have  supreme  power  over 
them  and  their  inhabitants.  In  the  exercise  of  this  sovereign 
dominion,  they  are  represented  by  the  government  of  the  United 
States,  to  whom  all  the  powers  of  government  over  that  subject 
have  been  delegated,  subject  only  to  such    restrictions  as  are  ex- 

thein.  He  says:  "  The  power  to  acquire,  necessarily  carries  with  it  the  power 
to  preserve  and  apply  to  the  purposes  for  which  it  was  acquired.  The  form 
of  government  to  be  established  necessarily  rested  in  the  discretion  of  Congress. 
It  was  their  duty  to  establish  the  one  that  would  be  the  best  suited  for  the 
protection  and  security  of  the  citizens  of  the  United  States  and  other  in- 
habitants who  might  be  authorized  to  take  up  their  abode  there,  and  that 
must  always  depend  upon  the  existing  condition  of  the  Territory,  as  to  the 
number  and  character  of  its  inhabitants,  and  the  situation  in  the  Territory. 
In  some  cases  a  government,  consisting  of  persons  appointed  by  the  Federal 
Government,  would  best  subserve  the  interests  of  the  Territory,  when  the 
inhabitants  were  few  and  scattered,  and  new  to  one  another.  In  other 
instances,  it  would  be  more  advisable  to  commit  the  powers  of  self-govern- 
ment to  the  people  who  had  settled  in  the  Territory,  as  being  the  most  com- 
petent to  determine  what  was  best  for  their  own  interests.  But  some  form  of 
civil  authority  would  be  absolutely  necessary  to  organize  and  preserve  civil- 
ized society,  and  prepare  it  to  become  a  State ;  and  what  is  the  best  form  must 
always  depend  on  the  condition  of  the  Territory  at  the  time,  and  the  choice 
of  the  mode  must  depend  upon  the  exercise  of  a  discretionary  power  by 
Congress  acting  within  the  scope  of  its  constitutional  authority,  and  not  in- 
fringing upon  the  rights  of  person  or  rights  of  property  of  the  citizen  who 
might  go  there  to  reside  or  for  any  other  lawful  purpose.  It  was  acquired 
by  the  exercise  of  this  discretion  and  it  must  be  held  and  governed  in  like 
manner,  until  it  is  fitted  to  be  a  State." 

«101  U.  S.  129;  25  L.  ed.  1046. 

6  114  U.  S.  15;  5  Sup.  Ct.  Rep.  747;  29  L.  ed.  47. 


Extent  of  Power  of  Congress  to  Govern  Territories.     367 

pressed  in  the  Constitution,  or  are  necessarily  implied  in  its  terms, 
or  in  the  purposes  and  objects  of  the  power  itself;  for  it  may  well 
be  admitted  in  respect  to  this,  as  to  every  power  of  society  over 
its  members,  that  it  is  not  absolute  and  unlimited.  But  in  ordain- 
ing government  for  the  territories,  and  the  people  who  inhabit 
them,  all  the  discretion  which  belongs  to  legislative  power  is  vested 
in  Congress ;  and  that  extends,  beyond  all  controversy,  to  deter- 
mining by  law,  from  time  to  time,  the  form  pf  the  local  govern- 
ment in  a  particular  Territory,  and  the  qualification  of  those  who 
shall  administer  it.  It  rests  with  Congress  to  say  whether,  in  a 
given  case,  any  of  the  people  resident  in  the  Territory,  shall  par- 
ticipate in  the  election  of  its  officers  or  the  making  of  its  laws; 
and  it  may,  therefore,  take  from  them  any  right  of  suffrage  it  may 
previously  have  conferred,  or  at  any  time  modify  or  abridge  it, 
as  it  may  deem  expedient.  The  right  of  local  self-government,  as 
known  to  our  system  as  a  constitutional  franchise,  belongs,  under 
the  Constitution,  to  the  States,  and  to  the  people  thereof,  by  whom 
that  Constitution  was  ordained,  and  to  whom  by  its  terms  all  power 
not  conferred  by  it  upon  the  government  of  the  United  States  was 
expressly  reserved." 

In  Late  Corporation,  etc.,  v.  United  States0  the  foregoing  de- 
cisions are  cited  and  unqualifiedly  approved. 

There  is  in  fact  an  unbroken  line  of  judicial  dicta  upon  this 
point.  Even  in  the  Dred  Scott  case,  Taney,  who  would  limit  the 
legislative  power  of  Congress  over  the  Territories  in  other  re- 
spects, does  not  deny  that  as  to  the  form  of  government  to  be  estab- 
lished over  them,  Congress  has  full  discretion.  Upon  this  point 
the  preceding  opinions  which  we  have  quoted  are  cited  by  Taney 
with  approval.  He  does,  indeed,  say  that  no  power  is  given  by 
the  Constitution  to  the  Federal  Government  to  acquire  territory 
to  hold  and  maintain  permanently  as  colonies,  but  admits,  as  we 
have  seen,  that  territory  may  be  annexed  which  is  not  immediately 
readv  for  statehood,  and  that  until  so  fitted,  the  form  of  its  gov- 
ernment must  necessarily  lie  in  the  discretion  of  Congress. 

6  136  U.  S.  1;   10  Sup.  Ct.  Rep.  792;  34  L.  ed.  478. 


368  '  Uioted  States  Coxstitutioxal  Law. 

In  the  opinion  rendered  by  Justices  White,  Shiras,  and 
MeKenna  and  concurred  in  by  Gray,  in  Downes  v.  Bid- 
well7  it  is  intimated  that  there  may  be  unexpressed  but 
inherent  limitations  upon  the  discretion  of  Congress  in  the 
establishment  of  governments  for  the  Territories.  After  call- 
ing attention,  in  illustration  of  the  plenitude  of  power  of 
Congress  in  this  respect,  to  the  fact  that  Congress  has  estab- 
lished in  the  District  of  Columbia  "  a  local  government 
totally  devoid  of  local  representation  in  the  elective  sense, 
administered  solely  by  officers  appointed  by  the  President,.  Con 
gress,  in  which  the  District  has  no  representative,  in  effect  acting 
as  the  local  legislature,  the  opinion  nevertheless  goes  on  to  say: 
"  "While,  therefore,  there  is  no  express  or  implied  limitation  on 
Congress  in  exercising  its  .power  to  create  local  governments  for 
any  or  all  of  the  Territories,  by  which  that  body  is  restrained 
from  the  widest  latitude  of  discretion,  it  does  not  follow  that  there 
may  not  be  inherent,  although  unexpressed,  principles  which  are 
the  basis  of  all  free  governments  which  cannot  be  with  impunity 
transcended  [Chuch  of  Jesus  Christ  v.  United  States,  136  U.  S. 
1,  10  Sup.  Ct,  Eep.  792;  34  L.  ed.  478].  But  this  does  not  sug- 
gest that  every  express  limitation  of  the  Constitution  which  is  ap- 
plicable has  not  force,  but  only  signifies  that  even  in  cases  where 
there  is  no  direct  command  of  the  Constitution  which  applies, 
there  may  nevertheless  be  restrictions  of  so  fundamental  a  nature 
that  they  cannot  be  transgressed,  although  not  expressed  in  so 
many  words  in  the  Constitution." 

It  is  difficult  for  the  author  to  follow  the  reasoning  of  the 
Justices  as  set  forth  in  these  sentences.  It  would  seem  that  there 
is  some  confusion  of  the  authority  of  Congress  to  create  govern- 
ments for  the  Territory,  and  its  power  to  legislate  regarding  the 
private  civil  rights  of  their  inhabitants.  The  reference  to  the 
Mormon  Church  case  shows  this,  for  that  case  had  nothing  to  do 
with  the  governing  powers  of  Congress.  These  governing  powers 
are  absolute,  without  any  express,  implied,  or  "  inherent "  limi- 
tations. 

7  182  U.  S.  244;  21  Sup.  Ct.  Rep.  770;  45  L.  ed.  1088. 


ExTEXT   OF   PoWEE  OF  CoXGBESS   TO  GoVEBN   TeEBIToEIES.        369 

§  161.  Territorial  Governments  are  Congressional  Governments. 

The  governments  established  in  the  Territories  by  Congress  act 
as  agencies  of  Congress,  in  the  same  sense  that  an  administrative 
board  acts  as  the  agent  of  the  law-making  body  that  creates  it. 
As  such  congressional  agencies,  the  territorial  governments  are  not 
-idered  to  be  part3  of  the  General  Government  established  or 
directly  provided  for  by  the  Constitution.  This  point  was  early 
determined  in  American  Insurance  Co.  v.  Canter.s  In  this  <jase 
the  point  was  raised  that  the  territorial  judges  in  Florida  had 
been  appointed  for  terms  of  but  four  years,  whereas  the  Constitu- 
tion provides  that  the  judges  of  both  the  Supreme  and  inferior 
federal  courts  shall  hold  office  during  good  behavior.  In  sustain- 
ing the  validity  of  the  territorial  law  in  this  matter,  Marshall 
said :  u  These  courts  .  .  .  are  not  constitutional  courts  in 
which  the  judicial  power  conferred  by  the  Constitution  on  the 
General  Government  can  be  deposited.  They  are  incapable  of 
receiving  it.  They  are  legislative  courts,  created  in  virtue  of  the 
general  right  of  sovereignty  which  exists  in  the  government,  or 
in  virtue  of  that  clause  which  enables  Congress  to  make  all  need- 
ful rules  and  regulations  respecting  the  territory  belonging  to  the 
United  States.  The  jurisdiction  with  which  they  are  invested  is 
not  a  .part  of  that  judicial  power  which  is  defined  in  the  third 
article  of  the  Constitution,  but  was  conferred  by  Congress  in 
execution  of  those  general  powers  which  that  body  possesses  over 
the  Territories  of  the  United  States." 

In  Benuer  v.  Porter8  the  court  say  with  reference  to  territorial 
governments:  ''They  are  legislative  governments,  and  their 
courts  legislative  courts,  Congress,  in  the  exercise  of  its  powers 
Tn  the  organization  and  government  of  the  territories,  combining 
the  powers  of  both  the  federal  and  state  authorities.  There  is  but 
one  system  of  government  or  of  laws  operating  within  their  limits, 
as  neither  is  subject  to  the  constitutional  provisions  in  respect  to 
state  and  federal  jurisdiction.  They  are  not  organized  under  the 
Constitution,  nor  subject  to  its  complex  distribution  of  the  powers 

M   Pet.  511:  7  L.  ed.  242. 
9  9  How.  235:   13  L.  ed.  119. 

24 


370  United  States  Constitutional  Law. 

of  government,  as  the  organic  law;  but  are  the  creations,  exclu- 
sively, of  the  legislative  department,  and  subject  to  its  supervision 
and  control.  Whether  or  not  there  are  provisions  in  that  instru- 
ment which  extend  to  and  act  upon  these  territorial  governments, 
it  is  not  now  material  to  examine."  10 

In  United  States  v.  Pridgeon11  it  was  held  that  the  courts  pro- 
vided for  the  Territory  of  Oklahoma  could  be  and  had  been  au- 
thorized by  Congress  to  sit  as  territorial  courts  to  administer  the 
laws  of  the  Territory,  and  as  courts  of  the  United  States  to  ad- 
minister the  laws  of  the  United  States. 

In  American  Insurance  Co.  v.  Canter12  and  in  Re  Cooper13  it 
was  held  that  the  territorial  courts  may  be  granted  ^admiralty 
jurisdiction.  Also,  though  not  "  inferior "  courts  within  the 
meaning  of  Section  1  of  Article  III  of  the  Constitution,  an  ap- 
peal may  be  granted  from  them  to  the  Supreme  Court.  In  United 
States  v.  Coeu  the  court  say:  "As  wherever  the  United  States 
exercises  the  power  of  government,  whether  under  specific  grant, 
or  through  the  dominion  and  sovereignty  of  plenary  authority  as 
over  the  Territories,  that  power  includes  the  ultimate  executive, 
legislative,  and  judicial  power,  it  follows  that  the  judicial  action  of 
all  inferior  courts  established  by  Congress  may  in  accordance  with 

10  In  Clinton  v.  Englebrecht  (13  Wall.  434;  20  L.  ed.  659),  the  court  say: 
"There  is  no  Supreme  Court  of  the  United  States,  nor  is  there  any  district 
court  of  the  United  States  in  the  sense  of  the  Constitution,  in  the  Territory 
of  Utah.  The  judges  are  not  appointed  for  the  same  terms,  nor  is  the 
jurisdiction  which  they  exercise  part  of  the  judicial  power  conferred  by  the 
Constitution  of  the  General  Government.  The  courts  are  the  legislative  courts 
of  the  Territories,  created  in  virtue  of  that  clause  which  authorizes  Congress 
to  make  all  needful  rules  and  regulations  respecting  the  Territories  belonging 
to  the  United  States." 

To  the  same  effect  are  the  cases  Hornbuckle  v.  Toombs.  18  Wall.  648.  21 
L.  ed.  966;  Good  v.  Martin,  95  U.  S.  90;  24  L.  ed.  341;  Reynolds  v.  United 
States,  98  U.  S.  145;  25  L.  ed.  244;  The  City  of  Panama,  101  U.  S.  453;  25 
L.  ed.  1061;  McAllister  v.  United  States,  141  U.  S.  174,  11  Sup.  Ct.  Eep. 
949;  35  L.  ed.  693;  United  States  v.  Pridgeon,  153  U.  S.  48;  14  Sup.  Ct.  Rep. 
746;  38  L.  ed.  631,  and  United  States  v.  Coe,  155  U.  S.  76;  15  Sup.  Ct.  Rep 
16;  39  L.  ed.  76. 

"  153  U.  S.  48;  14  Sup.  Ct.  Rep.  746;  38  L.  ed.  631. 

"I  Pet.  511;   7  L.  ed.  242. 

"143  IT.  S.  472;   12  Sup.  Ct.  Rep.  453;   36  L.  ed.  232. 

"  155  U.  S.  76;  15  Sup.  Ct.  Rep.  16;  39  L.  ed.  76. 


Extent  of  Power  of  Congress  to  Govern  Tebbitories.     371 

the  Constitution  be  subjected  to  the  appellate  jurisdiction  of  the 
supreme  judicial  tribunal  of  the  government  There  has  never 
been  any  question  in  regard  to  this  as  applied  to  territorial  courts, 
and  no  reason  can  be  perceived  for  applying  a  different  rule  to  the 
adjudications  of  the  court  of  private  land  claims  over  property  in 
the  Territories." 

Whether  or'  not  the  courts  of  the  District  of  Columbia  are 
"  inferior  "  federal  courts  within  the  meaning  of  Section  1  of 
Article  III  of  the  Constitution  has  never  been  squarely  settled. 
In  James  v.  United  States15  the  court  implies  that  is  not  de- 
termined, but  does  not  in  that  case  find  it  necessary  to  pass  upon 
the  point. 

With  reference  to  the  District  of  Columbia  it  will  be  pointed 
out16  that  Congress  may  not  delegate  to  the  local  governing  body 
legislative  powers,  but  only  authority  to  issue  local  municipal 
ordinances.  This  limitation  does  not  apply  with  reference  to  the 
Territories ;  for  Avhereas  with  regard  to  the  District  it  is  pro- 
vided that  Congress  shall  exercise  exclusive  legislation  in  all  cases 
whatsoever,  with  regard  to  the  Territories  it  is  provided  simply 
that  Congress  shall  have  the  power  "  to  dispose  of  and  make  all 
needful  rules  and  regulation."  There  has  thus  been  no  question 
but  that,  under  this  grant  of  authority,  Congress  may  provide  for 
the  establishment  in  the  Territories  of  legislatures  exercising  full 
law-making  powers,  subject  of  course  to  the  provisions  of  the  Con- 
stitution and  to  subsisting  or  subsequent  acts  of  Congress.  Thus, 
for  example,  in  Leitensdorfer  v.  Webb,17  with  reference  to  the 
establishment  of  courts,  the  court  declare:  "  It  was,  undoubtedly, 
within  the  competency  of  Congress  either  to  define  directly,  by 
their  own  act,  the  jurisdiction  of  the  courts  created  by  them  or 
to  delegate  the  authority  requisite  for  that  purpose  to  the  terri- 
torial governments." 

1--202  U.  S.  401:  2G  Sup.  Ct.  Rep.  685;  50  L.  ed.  1079. 

16  Chapter  XXVI. 

"20  How.  176;   15  L.  ed.  891. 


CHAPTER  XXYI. 

THE  DISTRICT  OF  COLUMBIA. 

§  162.  The  Government  of  the  District  of  Columbia. 

The  constitutional  status  of  the  district  used  as  the  seat  of 
the  Federal  Government  is  almost  the  same  as  that  of  the  Terri- 
tories. Clause  17  of  Section  VIII  of  Article  I  of  the  Constitution 
empowers  Congress  w  to  exercise  exclusive  legislation  in  all  cases 
whatsoever  over  such  district  (not  exceeding  ten  miles  square) 
as  rnay  by  cession  of  particular  States,  and  the  acceptance  of  Con- 
gress, become  the  seat  of  the  Government  of  the  United  States." 

In  Loughborough  v.  Blake1  Marshall  declared  the  District  of 
Columbia  to  be  a  part  of  the  "  United  States  "  within  the  nar- 
rower constitutional  meaning  of  the  term,2  and  as  such  Congress 
to  be  restrained  when  legislating  for  it,  by  the  limitations  appli- 
cable generally  to  the  United  States  as  thus  narrowly  defined.3 

In  Loughborough  v.  Blake4  the  question  was  as  to  the  power  of 
Congress  under  a  general  law  to  levy  and  collect  a  direct  tax  in 
the  District  of  Columbia.  In  denial  of  this  power  it  was  argued 
that  while  Congress  might,  when  acting  simply  as  a  local  legis- 
lature, levy  and  collect  such  a  tax  for  local  purposes,  in  the  same 
manner  that  the  legislature  of  a  State  might  do,  it  might  not  do 
so  under  its  general  taxing  power,  for  the  reason  that  the  Constitu- 
tion provides  that  "  Representatives  and  direct  taxes  shall  be  ap- 

15  Wh.  317;  5  L.  ed.  98. 

2  See,  post,  the  discussion  of  the  term  in  the  Insular  Cases. 

3  This  dictum  of  Marshall's  was  later  held  by  the  Supreme  Court  in  Downes 
T.  Bidwell  (182  U.  S.  244;  21  Sup.  Ct.  Rep.  770;  45  L.  ed.  1088)  to  be  an 
erioneous  one;  but  these  limitations  upon  the  legislative  power  of  Congress, 
though  thus  not  immediately  applicable  have  been  by  statute  ( 16  Stat,  at  L. 
42,  act  of  July  21,  1871)  extended  over  the  District.  Justice  Brown,  however. 
held  that  the  District  was  entitled  to  these  rights  by  reason  of  the  tact 
that  it  was  once  a  part  of  a  State  entitled  to  them,  and  that  these  rights 
having  once  attached,  they  were  not,  and  could  not,  by  cession  of  the 
District  to  the  United  States,  be  taken  away. 

4  5  Wh.  317;  5  L.  ed.  9S. 

[372] 


The  Distkict  of  Columbia.  373 

portioned  among  the  States  which  mar  be  included  within  the 
Union,   according  to  their  respective  numb.  To  this,   how- 

ever, Marshall  replied :  "  The  object  of  this  regulation  is,  we 
think,  to  furnish  a  standard  by  which  taxes  are  to  be  apportioned, 
not  to  exempt  from  their  operation  any  part  of  our  country.  Had 
the  intention  been  to  exempt  from  taxation  those  who  were  not 
represented  in  Congress,  that  intention  woidd  have  been  expressed 
in  direct  terms.''  The  grant  to  Congress  of  the  "  power  to  levy 
and  collect  taxes,  duties,  imposts  and  excises,"  is,  Marshall  de- 
clared, a  general  grant  without  limitation  as  to  place.  *  If  this 
could  be  doubted,"  he  continues,  "  the  doubt  is  removed  by  the 
subsequent  words  which  modify  the  grant.  These  words  are  '  but 
all  duties,  Rvpestfl  and  excises  shall  be  uniform  throughout  the 
United  States.'  It  will  not  be  contended  that  the  modification  of 
the  power  extends  to  places  to  which  the  power  itself  does  not  ex- 
tend. The  power,  then,  to  levy  and  collect  duties,  imposts,  and 
excises,  may  be  exercised  and  must  be  exercised  throughout  the 
United  States.  Does  this  term  designate  the  whole,  or  any  par- 
ticular portion  of  the  American  empire  I  Certainly  this  question 
can  admit  of  but  one  answer.  It  is  the  name  given  to  our  great 
republic,  which  is  composed  of  States  and  Territories.  The  Dis- 
trict of  Columbia,  or  the  Territory  west  of  the  Humour!  is  not 
less  within  the  United  States  than  Maryland  or  Pennsylvania; 
and  it  is  not  less  necessary,  on  the  principle  of  our  "Constitution, 
that  uniformity  in  the  imposition  of  imposts,  duties,  and  excises, 
should  be  ptnortod  in  the  one  than  in  the  other." 

Marshall,  however,  goes  on  to  argue  that  while  the  general  grant 
of  power  to  lay  and  collect  taxes  is  a  general  one  and,  therefore, 
authorizes  Congvess  to  include  the  District  and  Territories,  within 
the  operation  of  a  general  direct  tax  ^in  which  case  it  must  be 
apportioned  in  such  District  and  Territories  according  to  their 
respective  populations)  it  does  not  follow  that  such  areas  must  "be 
included  within  the  operation  of  such  laws.  "  If  ..  .  .  a  direct 
tax  be  laid  at  all,  it  must  bo  laid  on  every  State  conformably  to 
the  rule  provided  in  the  Constitution.  Congress  has  clearly  no 
power  to  exempt  any  State  from  its  due  share  of  the  burden.    But 


374  United  States  Constitutional  Law. 

this  regulation  is  expressly  confined  to  the  States,  and  creates  no 
necessity  for  extending  the  tax  to  the  District  or  Territories." 

In  Hepburn  v.  Ellzey5  it  was  held  by  Marshall  in  a  very  brief 
opinion  that  a  resident  of  the  District  of  Columbia  could  not 
maintain  an  action  in  a  federal  circuit  court  on  the  ground  that 
he  was  a  citizen  of  another  State,  for  the  reason  that  the  District 
is  not  a  State.    The  Chief  Justice  said: 

"  On  the  part  of  the  plaintiffs  it  has  been  urged  that  Columbia 
is  a  distinct  political  society;  and  is,  therefore,  '  a  state'  accord- 
ing to  the  definition  of  writers  on  general  law. 

"  This  is  true.  But  as  the  act  of  Congress  obviously  uses  the 
word  '  state '  in  reference  to  that  term  as  used  in  the  constitution, 
it  becomes  necessary  to  inquire  whether  Columbia  is  a  state  in  the 
sense  of  that  instrument.  The  result  of  that  examination  is  a 
conviction  that  the  members  of  the  American  confederacy  only 
are  the  states  contemplated  in  the  constitution. 

"  The  house  of  representatives  is  to  be  composed  of  members 
chosen  by  the  people  of  the  several  states;  and  each  state  shall 
have  at  least  one  representative. 

"  The  senate  of  the  United  States  shall  be  composed  of  two 
senators  from  each  state. 

"  Each  state  shall  appoint  for  the  election  of  the  executive,  a 
number  of  electors  equal  to  its  whole  number  of  senators  and 
representatives. 

"  These  clauses  show  that  the  word  state  is  used  in  the  consti- 
tution as  designating  a  member  of  the  union,  and  excludes  from 
the  term  the  signification  attached  to  it  by  writers  on  the  law  of 
nations.  When  the  same  term  which  has  been  used  plainly  in  this 
limited  sense  in  the  articles  respecting  the  legislative  and  execu- 
tive departments,  is  also  employed  in  that  which  respects  the 
judicial  department,  it  must  be  understood  as  retaining  the  sense 
originally  given  to  it. 

"  Other  passages  from  the  constitution  have  been  cited  by  the 
plaintiffs  to  show  that  the  term  state  is  sometimes  used  in  its 
more  enlarged  sense.  But  on  examining  the  passages  quoted,  they 
do  not  prove  what  was  to  be  shown  by  them. 

6  2  Cr.  445 ;  2  L.  ed.  332. 


The  District  of  Columbia.  375 

"  It  is  true  that  as  citizens  of  the  United  States,  and  of  that 
particular  district  which  is  subject  to  the  jurisdiction  of  Congress, 
it  is  extraordinary  that  the  courts  of  the  United  States,  which  are 
open  to  aliens,  and  to  the  citizens  of  every  state  in  the  union, 
should  be  closed  upon  them.  But  this  is  a  subject  for  legislative, 
not  for  judicial  consideration."  * 

The  District  of  Columbia  though  not  a  "  State  "  in  the  sense  in 
which  that  word  is  used  in  the  constitutional  clause  which  gives 
to  the  federal  courts  jurisdiction  in  suits  between  citizens  of 
different  States,6  it  is  declared  in  DeGeofroy  v.  Riggs,7  to  be  a 
State  within  the  meaning  of  a  treaty  granting  certain  rights  to 
aliens  within  the  "  States  of  the  Union."  That  the  District  is  a 
part  of  the  United  States  internationally  viewed  was  declared  in 
Loughborough  v.  Blake,  and  this  dictum  has  never  been  ques- 
tioned. 

But  with  reference  to  the  form  of  government  to  be  given  the 
District,  the  authority  of  Congress  is  as  absolute  as  we  have  seen 
it  to  be  with  regard  to  the  Territories.  "  The  Congress  of  the 
United  States  being  empowered  by  the  Constitution  '  to  exercise 
exclusive  jurisdiction  in  all  cases  whatever,'  over  the  seat  of  the 
National  Government,  has  the  entire  control  over  the  District  of 
Columbia  for  every  purpose  of  government,  national  or  local.  It 
may  exercise  within  the  District  all  legislative  powers  that  the 
legislature  of  a  State  might  exercise  within  a  State."  8 

The  Constitution  provides  that  Congress  shall  "  exercise  ex- 
elusive  legislation  in  all  cases  whatsoever  "  over  such  district  as 
should,  by  cession  of  particular  States,  become  the  seat  of  govern- 
ment. To  the  author  it  would  seem  that  the  intent  of  those  who 
framed  this  provision  was  that  by  it  Congress  should  be  granted 
authority  exclusive  of  the  State  or  States  by  which  the  district 
might  be  ceded.  Congress  has,  however,  since  the  beginning, 
acted  upon  the,  assumption  that  by  this  provision  it  is  intended 

6  Hepburn  v.  Kllzey,  2  Cr.  445 ;  2  L.  ed.  332 ;  Hooe  v.  Jamieson,  166  U.  S. 
305:   17  Sup.  Ct.  Rep.  596;  41  L.  ed.  1049. 

t  133  D.  S.  258;   10  Sup.  Ct.  Rep.  296;  33  L.  ed.  f>42. 

8  Capital  Traction  Co.  v.  Hof,  174  U.  S.  1;  19  Sup.  Ct.  Rep.  580;  43  L.  ed. 
873. 


376  United  States  Constitutional  Law. 

that  while  ordinary  municipal  powers,  such  as  grants  to  a  city, 
may  be  delegated  to  the  local  governing  body  in  the  District,  it 
may  not  delegate  to  such  body  the  general  legislative  powers  pos- 
sessed by  a  State  of  the  Union.  That,  in  other  words,  the  legis- 
lative authority  over  the  District  being  vested  by  the  Constitution 
"  exclusively  "  in  Congress,  it  may  not  by  delegation  be  exercised 
by  any  other  body.  Thus,  if  we  divide  the  governing  powers  in 
the  United  States  into  national,  state  and  local,  it  has  been  held 
necessary  that,  as  regards  the  District  the  first  two  must  be  exer- 
cised by  Congress  itself. 

It  cannot  be  said  that  the  Supreme  Court  has  passed  squarely 
upon  this  point,  but  by  various  dicta  this  doctrine  has  been  de- 
clared. In  Stoutenburgh  v.  Hennick,0  the  court,  after  saying  that 
the  creation  of  municipalities  exercising  local  self-government 
does  not  violate  the  rule  that  legislative  powers  may  not  be  dele- 
gated, go  on  to  say:  "But  as  the  repository  of  the  legislative 
powers  of  the  United  States,  Congress  in  creating  the  District  of 
Columbia  '  a  body  corporate  for  municipal  purposes  '  could  only 
authorize  it  to  exercise  municipal  powers."  Strictly  speaking, 
this  dictum  was  obiter  as  regards  the  delegation  to  the  local  body 
of  local  legislative  powers  such  as  are  exercised  by  the  States. 
within  their  several  6tate  limits,  for  the  point  actually  determined 
in  the  case  was  the  constitutional  inability  of  Congress  to  give  to 
the  district  government  authority  to  legislate  with  reference  to 
sl  matter  of  national  concern,  namely,  interstate  commerce.  It 
is  beJieved,  however,  that  the  long-continued  legislative  construc- 
tion which  has  been  consistently  followed,  reinforced  by  this  and 
other  judicial  dicta,™  makes  very  improbable  the  acceptance  of 
a  different  doctrine. 

When  legislating  for  the  District,  and  the  same  is  true  as  re- 
gards the  Territories,  Congress  aets  not  only  as  a  local  legislature 
in  the  sense  that  a  State  acts  a-s  the  local  legislature  for  that  State, 
but  also  as  a  National  Legislature.  Whence  it  follows  that  the 
laws  thus  enacted  though  of  course  only  applicable  to  the  local 

9  129  U.  S.  141;   9  Sup.  Ct.  Rep.  256;  32  L.  ed.  637. 

»t7f.  Roach  t.  Riswiek,  McArthur  &  Maekay,  171;  Cohens  v.  Virginia, 
6  Wh.  264;  5  L.  ed.  257. 


The  District  of  Columbia.  3 .  . 

areas,  the  District  or  the  Territories,  especially  referred  to,  are 
vet  ■■tiffin]  acts  in  that,  so  far  as  is  necessary  for  their  enforce- 
ment, they  have  a  validity  throughout  the  Union.  This  doctrine 
is  clearly  laid  down  by  Marshall  in  Cohens  v.  Virginia,"  and 
ha.-  not  since  been  questioned.     In  that  case  the  court  say: 

u  The  clause  which  gives  exclusive  jurisdiction  is.  unquestion- 
ably, a  part  of  the  Constitution,  and,  as  such,  binds  all  the  United 
States.  Those  who  contend  that  acts  of  Congress,  made  in  pursu- 
ance of  this  power,  do  not,  like  acts  made  in  pursuance  of  other 
powers,  bind  the  nation,  ought  to  show  some  safe  and  clear  rule 
which  shall  support  this  construction,  and  prove  that  an  act  of 
Congress,  clothed  in  all  the  forms  which  attend  other  legislative 
acts,  and  passed  in  virtue  of  a  power  conferred  on,  and  exercised 
by  (''ingress,  as  the  legislature  of  the  Union,  is  not  a  law  of  the 
United  States,  and  does  not  bind  them.  .  .  .  The  power  vested 
in  0— gMM,  a-  the  legislature  of  the  United  States,  to  legislate 
exclusively  within  any  place  ceded  by  a  State,  carries  with  it,  as 
an  incident,  the  right  to  make  that  power  effectual.  If  a  felon 
escapes  out  of  the  State  in  which  the  act  has  been  committed,  the 
government  cannot  pursue  him  into  another  State,  and  apprehend 
him  there,  but  must  demand  him  from  the  executive  power  of 
that  other  State,  If  Congress  were  to  be  considered  merely  as 
the  local  legislature  for  the  fort  or  other  place  in  which  the  of- 
fense might  be  committed,  then  this  .principle  would  apply  to 
them  as  to  other  local  legislatures,  and  the  felon  who  should 
escape  out  of  the  fort,  or  other  place,  in  which  the  felony  may 
have  been  committed,  could  not  be  apprehended  by  the  marshal, 
but  must  be  demanded  from  the  executive  of  the  State.  But  we 
know  that  the  priuciple  does  not  apply;  and  the  reason  is,  that 
Congress  is  not  a  local  legislature,  but  exercises  this  particular 
power,  like  -all  its  other  powers,  in  its  high  character,  as  the  legis- 
lature of  the  Union.  The  American  people  thought  it  a  necessary 
power,  and  they  conferred  it  for  their  own  benefit.  Being  so  con- 
ferred, it  carries  with  it  all  those  incidental  powers  which  are 
necessary  to  its  complete  and  effectual  execution." 

11  6  Wh.  204 ;  5  L.  ed.  257. 


378  United  States  Constitutional  Law. 

§  163.  Places  Purchased. 

The  same  clause  of  the  Constitution  which  grants  to  Congress 
exclusive  jurisdiction  over  the  district  to  be  selected  for  the  seat 
of  the  National  Government,  authorizes  Congress  "  to  exercise 
like  authority  over  all  places  purchased  by  the  consent  of  the  leg- 
islature of  the  State  in  which  the  same  shall  be  for  the  erection 
of  forts,  magazines,  arsenals,  dockyards,  and  other  needful 
buildings." 

The  federal  ownership  of  such  tracts  within  the  States  is  to  be 
sharply  distinguished  from  political  jurisdiction  over  them.  This 
latter,  as  the  Constitution  provides,  may  be  obtained  only  when 
the  districts  have  been  acquired  with  the  consent  of  the  States  in 
which  they  are  situated. 

The  language  of  Clause  17  would  seem  to  indicate  that  the 
framers  of  the  Constitution  intended  that  the  General  Govern- 
ment should  or  could  acquire  lands  within  the  States  only  by 
purchase  and  with  the  consent  of  the  States.  In  practice,  how- 
ever, this  consent  has  not  always  been  obtained,  or  been  deemed 
necessary.  But,  in  such  cases,  the  political  jurisdiction  of  the 
State  is  not  ousted,  unless  the  lands  are  used  for  the  purposes  of 
government.  In  Tort  Leavenworth  R.  R.  Co.  v.  Lowe12  the  court 
say :  "  The  consent  of  the  States  to  the  purchase  of  lands  within 
them  for  the  special  purposes  named  [in  Clause  17]  is  .  .  . 
essential  under  the  Constitution,  to  the  transfer  to  the  General 
Government  with  the  title,  of  political  jurisdiction  and  dominion. 
Where  lands  are  acquired  without  such  consent,  the  possession  of 
the  United  States,  unless  political  jurisdiction  be  ceded  to  them 
in  some  other  way,  is  simply  that  of  an  ordinary  proprietor.  The 
property  in  that  case,  unless  used  as  a  means  to  carry  out  the 
purposes  of  the  government,  is  subject  to  the  legislative  authority 
and  control  of  the  States  equally  with  the  property  of  private 
individuals." 

Also,  the  General  Government  is  able  to  acquire  lands  within 
the  States  by  the  exercise  of  the  right  of  eminent  domain,  a  right 
which  it  may  employ  when  "  necessary  and  proper  "  to  the  exer- 

12  114  U.  S.  525;  5  Sup.  Ct.  Rep.  995;  29  L.  ed.  264. 


The  District  of  Columbia.  379 

cise  of  any  of  its  expressly  given  powers.13  When  thus  obtained, 
the  lands  like  those  acquired  by  direct  purchase  and  without  the 
consent  of  the  States,  remains  subject  to  the  general  political 
jurisdiction  of  the  States  in  which  they  are  located.  As  property 
of  the  United  States  they  are  not,  however,  subject  to  taxation  by 
the  States.14 

is  Kohl  v.  United  States,  91  U.  S.  367;  23  L.  ed.  449;  St.  Louis  v.  W.  U. 
Tel.  Co.,  148  U.  S.  92. 

M  Van  Brocklin  v.  Tennessee,  117  U.  S.  151;  6  Sup.  Ct.  Rep.  670;  29  L.  ed. 
845. 


CHAPTJEE  XXVIX 

MTT.TTARV    AND    PRESIDENTIAL    GOVERNMENT    OF    ACQUIRED 

TERRITORY. 

§  164.  Conquest  or  Military  Occupation  does  not  Operate  to 
Annex  Territory- 
Mere  conquest,  that  is,  the  occupation  by  military  force  of 
foreign  territory,  is  not  sufficient  to  annex  such  territory  to  the 
State  whose  forces  are  in  possession  of  it.  However,  for  the  time 
being,  as  a  belligerent  right,  and  from  necessity,  the  entire  control 
of  this  area,  its  government,  and  the  life  and  property  of  its  in- 
habitants are  in  the  hands  of  the  victorious  power.  The  inhabit- 
ants are  no  longer  protected  by  the  State  whose  forces  have  been 
ousted,  and  for  the  time  being  owe  no  allegiance  to  it,  but  owe 
an  allegiance  to  the  State  which  is  in  possession. 

In  the  quite  early  case  of  United  States  v.  Rice1  the  doctrine 
of  military  possession  is  discussed  with  reference  to  the  port  of 
Castine,  Maine,  which,  for  a  time  during  the  War  of  1812,  was 
in  possession  of  the  British  military  forces,  but  after  peace  was 
restored,  and  returned  to  the  United  States.  The  court  say:  "  It 
appears,  by  the  pleadings,  that  on  the  first  day  of  September, 
1814,  Castine  was  captured  by  the  enemy,  and  remained  in  his 
exclusive  possession,  under  the  command  and  control  of  his  mili- 
tary and  naval  forces,  until  after  the  ratification  of  the  treaty  of 
peace  in  February,  1815.  .  .  .  By  the  conquest  and  military 
occupation  of  Castine,  the  enemy  acquired  that  firm  possession 
which  enabled  him  to  exercise  the  fullest  rights  of  sovereignty 
over  that  place.  The  sovereignty  of  the  United  States  over  the 
territory  was,  of  course,  suspended,  and  the  laws  of  the  United 
States  could  no  longer  be  rightfully  enforced  there,  or  be  obliga 
tory  upon  the  inhabitants  who  remained  and  submitted  to  the 
conquerors.  By  the  surrender  the  inhabitants  passed  under  a 
temporary  allegiance  to  the  British  Government,  and  were  bound 
by  such  laws,  and  such  only,  as  it  chose  to  recognize  and  impose. 

14  Wh.  246;  4  L.  ed.  562. 

[380] 


Government  of  Acquired  Territory.  381 

From  the  nature  of  the  ease,  no  other  laws  could  be  obligatory 
mptm  them,  far  where  there  is  no  protection  or  allegiance  or  sov- 
ereignty, there  can  be  no  claim  to  obedience.  Castine  was-,  there- 
fore, during  this  period,  so  far  as  respected  our  revenue  laws,  to 
be  deemed  a  foreign  port;  and  goods  imported  into  it  by  the  in- 
habitants were  subject  to  such  duties  only  as  the  British  Govern- 
ment chose  to  require.  Such  goods  were  in  no  eorreet  sense 
imported  into  the  United  States.  The  subsequent  evacuation  by 
the  enemy,  and  resumption  of  authority  by  the  United  States,  did 
not,  and  could  not,  change  the  character  of  the  previous  trans- 
actions." 

In  Fleming  v.  Page2  the  question  arose  whether  duties  levied 
up' in  goods  entering  the  United  States  from  the  port  of  Tampico, 
at  the  time  it  was  in  the  military  possession  of  the  United  States, 
were  properly  levied  under  the  Act  of  Congress  which  imposed 
duties  upon  goods  imported  from  a  foreign  country.  Taney,  who 
rendered  the  opinion  of  the  court,  said :  "  The  Mexican  authori- 
ties had  been  driven  out,  or  had  submitted  to  our  army  and  navy 
and  the  country  was  in  the  exclusive  and  firm  possession  of  the 
United  States  and  governed  by  the  military  authorities,  acting 
under  the  orders  of  the  President.  But  it  does  not  follow  that 
it  was  a  part  of  the  United  States,  or  that  it  ceased  to  be  a  foreign 
country,  in  the  sense  in  which  these  words  are  used  in  the  acts  o£ 
Congress.  The  country  in  question  had  been  conquered  in  war. 
But  the  genius  and  character  of  our  institutions  are  peaceful  and 
the  power  to  declare  war  was  not  conferred  upon  Congress  for 
the  purposes  of  aggression  or  aggrandizement,  but  to  enable  the 
General  Government  to  vindicate  by  arms,  if  it  should  become 
necessary,  its  own  rights  and  the  rights  of  its  citizens.  A  war, 
therefore,,  declared  by  Congress  can  never  be  presumed  to  be  waged 
fox  the  purpose  of  conquest  or  the  acquisition  of  territory;  nor 
does  the  law  declaring  the  war  imply  an  authority  to  the  President 
to  enlarge  the  limits  of  the  United  States  by  subjugating  the 
enemy's  territory.  The  United  States,  it  is  true,  may 
enlarge     ha     boundaries     by     conquest     or     treaty     and     may 

2  9  How.  G03;   13  L.  cd.  276. 


382  United  States  Constitutional  Law. 

demand  the  cession  of  territory  as  a  condition  of  peace 
in  order  to  indemnify  its  citizens  for  the  injuries  they 
have  suffered,  or  to  reimburse  the  government  for  the  expense  of 
the  war ;  but  this  can  be  done  only  by  the  treaty-making  power  or 
the  legislative  authority,  and  is  not  a  part  of  the  power  conferred 
upon  the  President  by  the  declaration  of  war.  His  duty  and 
power  are  purely  military.  .  .  .  He  may  invade  the  hostile 
country  and  subject  it  to  the  sovereignty  and  authority  of  the 
United  States;  but  his  conquests  do  not  enlarge  the  boundaries 
of  this  Union  nor  extend  the  operations  of  our  institutions  and 
laws  beyond  the  limits  before  assigned  to  them  by  the  legislative 
power.  It  is  true,  that,  when  Tampico  had  been  captured,  and 
the  State  of  Tamaulipas  subjugated,  other  nations  were  bound  to 
regard  the  country,  while  our  possession  continued,  as  the  terri- 
tory of  the  United  States,  and  to  respect  it  as  such.  For,  by  the 
laws  and  usages  of  nations,  conquest  is  a  valid  title,  while  the 
victor  maintains  the  exclusive  possession  of  the  conquered  country. 
The  citizens  of  no  other  nation,  therefore,  had  a  right  to  enter 
it  without  the  permission  of  the  American  authorities,  nor  to  hold 
intercourse  with  its  inhabitants,  nor  to  trade  with  them.  As 
regarded  all  other  nations,  it  was  a  part  of  the  United  States,  and 
belonged  to  them  as  exclusively  as  the  territory  included  in  our 
established  boundaries.  But  yet  it  was  not  a  part  of  this  Union. 
For  every  nation  which  acquires  territory  by  treaty  or  conquest, 
holds  it  according  to  its  own  institutions  and  laws.  And  the  rela- 
tion in  which  the  port  of  Tampico  stood  to  the  United  States  while 
it  was  occupied  by  their  arms  did  not  depend  upon  the  laws  of 
nations,  but  upon  our  own  Constitution  and  acts  of  Congress. 
The  power  of  the  President  under  which  Tampico  and  the  State 
of  Tamaulipas  were  conquered  and  held  in  subjection  was  simply 
that  of  a  military  commander  prosecuting  a  war  waged  against  a 
public  enemy  by  the  authority  of  his  government.  And  the  country 
from  which  these  goods  were  imported  was  invaded  and  subdued, 
and  occupied  as  the  territory  of  a  foreign  hostile  nation,  as  a 
portion  of  Mexico,  and  was  held  in  possession  in  order  to  distress 
and  harass  the  enemy.    While  it  was  occupied  by  our  troops,  they 


Government  of  Acquired  Territory.  383 

were  in  an  enemy's  country,  and  not  in  their  own ;  the  inhabitants 
were  still  foreigners  and  enemies,  and  owed  to  the  United  States 
nothing  more  than  the  submission  and  obedience,  sometimes  called 
temporary  allegiance,  which  is  due  from  a  conquered  enemy,  when 
he  surrenders  to  a  force  which  he  is  unable  to  resist  But  the 
boundaries  of  the  United  States,  as  they  existed  when  war  was 
declared  against  Mexico,  were  not  extended  by  the  conquest ;  nor 
could  they  be  regulated  by  the  varying  incidents  of  war,  and  be 
enlarged  or  diminished  as  the  armies  on  either  side  advanced  or 
retreated.  They  remained  unchanged.  And  every  place  which 
was  out  of  the  limits  of  the  United  States,  as  previously  estab- 
lished by  the  political  authorities  of  the  government,  was  still  for- 
eign ;  nor  did  our  laws  extend  over  it.  Tampico  was,  therefore, 
a  foreign  port  when  this  shipment  was  made." 

At  first  it  may  appear  that  the  doctrine  declared  in  Fleming  v. 
Page  is  not  in  harmony  with  that  uttered  in  United  States  v. 
Rice;  for  in  the  former  case  it  was  held  that  mere  military  occu- 
pation was  not  sufficient  to  annex  the  territory  occupied  by  the 
United  States;  whereas,  in  the  latter  case,  it  was  declared  that 
military  occupation  by  the  forces  of  another  State  did  operate 
to  render  the  port  foreign  to  the  United  States.  If  these  two  de- 
cisions had  been  given  by  an  international  tribunal,  or  had  had 
reference  to  the  status  of  the  territories  received  internationally, 
they  undoubtedly  would  have  been  inharmonious.  For,  looked  at 
from  the  international  side,  a  country  belongs  to  that  power 
which  is  in  effective  control  of  it.  Therefore,  thus  viewed, 
Castine  belonged  to  Great  Britain  while  its  military  forces  were 
in  paramount  control  of  it.  In  like  manner,  Tampico,  viewed 
internationally,  was  a  part  of  the  United  States,  and  other  States 
would  have  held  the  United  States  responsible  for  anything  that 
might  have  occurred  there  while  it  was  in  possession.  But  when, 
as  was  the  case  both  in  United  States  v.  Rice  and  Fleming  v. 
Page,  the  question  was  purely  one  of  domestic  municipal  law,  it 
was  within  the  pi*ovince  of  the  Supreme  Court  to  determine  in 
each  case  the  status  of  the  territory  concerned  according  to  the 
peculiar  municipal  or  constitutional  law  which  it  was  interpreting 


38-t  UNITED    STA.TES    CONSTITUTIONAL   Law. 

and  applying-  In  other  words,  in  the  Fleming  v.  Page  case  the 
Supreme  Court  would  not  have  been  justified  in  declaring  that 
Tampico  did  not,  during  American  occupancy,  belong  to  the 
United  States  in  an  international  sense;  whereas  it  was  justified 
in  holding  that  from  the  viewpoint  of  American  constitutional 
law  it  was  not  a  part  of  the  United  States,  any  more  than,  for 
example,  was  Cuba  during  the  time  of  its  administration  by 
American  authorities.3 

In  Xeely  v.  Henkel,4  with  reference  to  the  status  of  Cuba. 
during  the  American  occupation,  the  Supreme  Court  say :  "  Cuba 
is  none  the  less  foreign  territory,  within  the  meaning  of  the  act 
of  Congress,  because  it  is  under  a  military  governor  appointed 
by  and  representing  the  President  in  the  work  of  assisting  the 
inhabitants  of  that  island  to  establish  a  government  of  their  own, 
under  which,  as  a  free  and  independent  people,  they  may  control 
their  own  affairs  without   interference  by   other  nations.      The 

3  In  De  Lima  v.  Bidwell  (132  U.  S.  I ;  21  Sup.  Ct.  Rep.  743:  45  L.  ed. 
1041)  the  court  say:  "It  is  not  intended  to  intimate  that  the  eases  of 
United  States  v.  Rice  and  Fleming  v.  Page  are  not  harmonious-.  In  fact 
they  are  perfectly  consistent  with  each  other.  In  the  first  case  it  was  merely 
held  that  duties  could  not  be  collected  upon  goods  brought  into  a  domestic 
port  during  a  temporary  occupation  by  the  enemy,  though  the  enemy  subse- 
quently evacuated  it;  in  the  latter  case,  that  the  temporary  military  occupa- 
tion by  the  United  States  of  a  foreign  port  did  not  make  it  a  domestic  port, 
and  that  goods  imported  into  the  United  States  from  that  port  were  still 
subject  to  duty.  It  would  have  been  obviously  unjust  in  the  Rice  case  to 
impose  a  duty  upon  goods  which  might  already  have  paid  a  duty  to  the 
British  commander.  It  would  have  been  equally  unjust  in  the  Fleming  case 
to  exempt  the  goods  from  duty  by  reason  of  our  temporary  occupation  of  the 
port  without  a  formal  cession  of  such  port  to  the  United  States." 

This  reasoning,  based  simply  on  principles  of  justice  or  expediency,  hardly 
seems  convincing,  but  that  the  two  cases  are  not  necessarily  inharmonious  has 
been  shown  above  in  the  text. 

The  dissenting  justices  in  the  De  Lima  case,  however,  held  that  the  two 
cases  were  harmonious,  but  not  upon  the  grounds  stated  by  the  majority. 
That  which,  in  their  opinion,  justified  the  court  in  holding  in  the  Fleming 
case  that  Tampico  was  not  within  the  scope  of  the  United  States  tariff  laws 
was  because  Congress  had  not  so  legislated  as  to  bring  it  within  a  collection 
district  or  to  establish  a  custom  house  there.  "At  Castine,"  they  say,  "  the 
instrumentalities  cf  the  custom  laws  had  been  divested,  at  Tampico  they 
had  not  been  invested." 

<  ISO  U.  S.  109;  21  Sup.  Ct.  Rep.  302;  45  L.  ed.  448. 


GoVERXMEXT    OF    A(  -.TIRED    TERRITORY.  - .", 

occupancy  of  the  island  by  troops  of  the  United  States  was  the 
aeccwty  result  of  the  war.  The  result  could  not  hare  been 
avoided  by  the  United  States  consistently  with  the  principles  of 
international  law  or  with  its  obligations  to  the  people  of  Cuba. 
It  is  true  that  as  between  Spain  and  the  United  States  —  indeed, 
as  between  the  United  States  and  all  foreign  nations  —  Cuba, 
upon  the  cessation  of  hostilities  with  Spain  and  after  the  treaty 
of  Paris,  was  to  be  treated  as  if  it  were  conquered  territory.  But 
as  between  the  United  States  and  Cuba  that  island  is  territory 
held  in  trust  for  the  inhabitants  of  Cuba,  to  whom  it  rightfully 
belongs,  and  to  whose  exclusive  control  it  will  be  surrendered 
when  a  stable  government  shall  have  been  established  by  their 
voluntary  action." 

In  Doolcy  v.  United  States,5  one  of  the  "  Insular  Cases  *  de- 
cided in  1901,  the  doctrine  of  Fleming  v.  Page  is  applied  in  fixing 
the  status  of  Porto  Rico  while  under  the  military  government  of 
the  United  States,  but  prior  to  the  ratification  of  the  treaty  of 
peace  ceding  the  island  to  the  United  States.  The  court  say : 
"  During  this  period  the  United  States  and  Porto  Rico  were  still 
foreign  countries  with  respect  to  each  othef,  and  the  same  right 
which  authorized  us  to  exact  duties  upon  merchandise  imported 
from  Porto  Rico  to  the  United  States  authorized  the  military 
commander  in  Porto  Rico  to  exact  duties  upon  goods  imported 
into  the  island  from  the  United  States.  The 'fact  that,  notwith- 
standing the  military  occupation  of  the  United  States,  Porto  Rico 
remained  a  foreign  country  within  the  revenue  laws,  is  established 
by  the  case  of  Fleming  v.  Page."  8 

6  182  U.  S.  222:  21  Sup.  Ct.  Rep.  762;  45  L.  ed.  1074. 

•  President  McKinley  was  criticized,  and  with  justice,  for  issuing  on 
Decerning  21.  1888,  that  is.  on  a  date  prior  to  the  ratification  of  the  treaty 
with  Spain  ceding  the  Philippines,  an  executive  order  in  which  he  declared: 
"  With  the  signature  of  the  treaty  of  peace  between  the  United  States  and 
Spain  by  their  respective  plenipotentiaries  at  Paris  on  the  10th  instant,  and 
as  the  result  of  the  victories  of  American  arms,  the  future  control,  disposition, 
and  government  of  the  Philippine  Islands  are  ceded  to  the  United  States. 
In  fulfilment  of  the  rights  of  sovereignty  thus  acquired,  etc.'"  The  treaty 
en  ii"t  ratified  by  the  treaty-making  power  of  the  United  States  until  the 
following  Fihniary.  and  did  not  go  into  effect  until  April   11,  1899. 


386  United  States  Constitutional  Law. 

§  165.  Authority  of  De  Facto  Governments. 

The  government  established  and  maintained  by  one  State  in 
military  possession  of  territory  of  another,  is,  of  course,  a  de  facto 
one,  but  de  facto  in  a  somewhat  different  sense  from  that  of  a 
government  established  as  a  result  of  a  rebellion  or  civil  war. 
But  in  either  case  the  authority  of  the  de  facto  government  is  to 
an  extent  at  least  recognized.  This  is  adverted  to  by  the  Supreme 
Court  in  Tborington  v.  Smith7  in  passing  upon  the  status  of  the 
Confederate  Government  established  during  the  Civil  War.8 

7  8  Wall.  1;   19  L.  ed.  361. 

8  The  court  say :  "  There  are  several  degrees  of  what  is  called  de  facto 
government.  Such  a  government,  in  its  highest  degree,  assumes  a  character 
very  closely  resemhling  that  of  a  lawful  government.  This  is  when  the 
usurping  government  expels  the  regular  authorities  from  their  customary 
seats  and  functions,  and  establishes  itself  in  their  place,  and  so  becomes  the 
actual  government  of  a  country.  The  distinguishing  characteristic  of  such 
a  government  is,  that  adherents  to  it  in  war  against  the  government  de  jure 
do  not  incur  the  penalties  of  treason;  and  under  certain  limitations,  obliga- 
tions assumed  by  it  in  behalf  of  the  country,  or  otherwise,  will,  in  general, 
be  respected  by  the  government  de  jure  when  restored.  It  is  very  certain  that 
the  Confederate  Government  was  never  acknowledged  by  the  United  States  as 
a  de  facto  government  in  this  sense.  Nor  was  it  acknowledged  as  such  by 
other  powers.  No  treaty  was  made  with  it  by  any  civilized  State.  No 
obligations  of  a  national  character  were  created  by  it,  binding  after  its 
dissolution,  on  the  States  which  it  represented,  or  on  the  National  Government. 
From  a  very  early  period  of  the  Civil  War  to  its  close,  it  was  regarded  as 
simply  the  military  representative  of  the  insurrection  against  the  authority 
of  the  United  States. 

But  there  is  another  description  of  government,  called  also  by  publicists  a 
government  de  facto,  but  which  might,  perhaps,  be  more  aptly  denominated  a 
government  of  paramount  force.  Its  distinguishing  characteristics  are  (1) 
that  its  existence  is  maintained  by  active  military  power  within  the  Terri- 
tories, and  against  the  rightful  authority  of  an  established  and  lawful 
government;  and  (2)  that  while  it  exists,  it  must  necessarily  be  obeyed  in 
civil  matters  by  private  citizens  who,  by  acts  of  obedience,  rendered  in  sub- 
mission to  such  force,  do  not  become  responsible,  as  wrongdoers,  for  those 
acts,  though  not  warranted  by  the  laws  of  the  rightful  government.  Actual 
governments  of  this  sort  are  established  over  districts  differing  greatly  in 
extent  and  conditions.  They  are  usually  administered  directly  by  military 
authority,  but  they  may  be  administered  also  by  civil  authority,  supported 
more  or  less  directly  by  military  force.  One  example  of  this  sort  of  govern- 
ment is  found  in  the  case  of  Castine,  in  Maine,  reduced  to  British  possession 
during  the  war  of  1812.  ...  A  like  example  is  found  in  the  case  o| 
Tampico,  occupied  during  the  war  with  Mexico  by  the  troops  of  the  United 


GoVEEXMEXT    OF    AcQUIBED    TeEKITOKY.  387 

§  166.  Status  of  Conquered  Domestic  Territory. 

In  New  Orleans  v.  Xew  York  Mail  Steamship  Co.9  was  con- 
sidered the  status  of  territory  of  the  Southern  Confederacy  which 
had  been  conquered  by  the  federal  forces.  The  court  held  that 
the  federal  forces  in  possession  might  exercise  the  same  absolute 
authority  as  in  the  case  of  territory  conquered  from,  a  foreign 
State.10 

States.  It  was  determined  by  this  court,  in  Fleming  v.  Page  (9  How.  603; 
13  L.  ed.  270),  that  although  Tampico  did  not  become  a  port  of  the  United 
States  in  consequence  of  that  occupation,  still,  having  come  together  with  the 
whole  State  of  Tamaulipas,  of  which  it  was  part,  into  the  exclusive  possession 
of  the  national  forces,  it  must  be  regarded  and  respected  by  other  nations  as 
the  territory  of  the  United  States.  These  were  cases  of  temporary  possession 
of  territory  by  lawful  and  regular  governments  at  war  with  the  country  of 
which  the  territory  so  possessed  was  part.  The  central  government  estab- 
lished for  the  insurgent  States  differed  from  the  temporary  governments  at 
Castine  and  Tampico  in  the  circumstance  that  its  authority  did  not  originate 
in  lawful  acts  of  regular  war,  but  it  was  not,  on  that  account,  less  actual  or 
less  supreme.  And  we  think  that  it  must  be  classed  among  the  governments 
of  which  these  are  examples.  It  is  to  be  observed  that  the  rights  and  obliga- 
tions of  a  belligerent  were  conceded  to  it,  in  its  military  character,  very  soon 
after  the  war  began,  from  motives  of  humanity  and  expediency  by  the  United 
States.  The  whole  territory  controlled  by  it  was  thereafter  held  to  be 
enemies'  territory,  and  the  inhabitants  of  that  territory  were  held,  in  most 
respects,  for  enemies.  To  the  extent,  then,  of  actual  supremacy,  however 
unlawfully  gained,  in  all  matters  of  government  within  its  military  lines, 
the  power  of  the  insurgent  government  cannot  be  questioned.  That  supremacy 
did  not  justify  acts  of  hostility  to  the  United  States.  How  far  it  should 
excuse  them  must  be  left  to  the  lawful  government  upon  the  re-establishment 
of  its  authority.  But  it  made  obedience  to  its  authority,  in  civil  and  local 
matters,  not  only  a  necessity  but  a  duty.  Without  such  obedience,  civil  order 
wa?  impossible." 

9  20  Wall.  387 ;  22  L.  ed.  354. 

io  "Although  the  City  of  New  Orleans  was  conquered  and  taken  possession 
of  in  a  civil  war  waged  on  the  part  of  the  United  States  to  put  down  an 
insurrection  and  restore  the  supremacy  of  the  National  Government  in  the 
Confederate  States,  that  government  had  the  same  power  and  rights  in  terri- 
tory held  by  conquest  as  if  the  territory  had  belonged  to  a  foreign  country, 
and  had  been  subjugated  in  a  foreign  war.  The  Prize  Cases,  2  Black,  635 ; 
17  L.  ed.  469;  llr«.  Alexander's  Cotton,  2  Wall.  404:  17  L.  ed.  915; 
Mauian  v.  Ins.  Co..  6  Wall.  1 ;  18  L.  ed.  836.  In  such  cases  the  conquering 
power  has  a  right  to  displace  the  pre-existing  authority,  and  to  assume,  to 
such  extent  as  it  may  deem  proper,  the  exercise  by  itself  of  all  the  powers 
and  functions  of  government.  It  may  appoint  all  the  necessary  officers  and 
clothe    them   with    designated    powers,    larger   or    smaller,    according    to    its 


388  Uxited  States  Constitutional  Law. 

§  167.  Presidential  Governments. 

In  1846,  during  the  war  with  Mexico,  the  United  States  mili- 
tary forces  took  possession  of  Upper  California.  In  1847  the 
President  as  Commander-in-Chief  of  the  army  and  navy  author- 
ized the  establishment,  by  the  military  commanders,  of  a  civil  and 
military  government  for  the  conquered  territory.  This  was  done. 
In  Cross  v.  Harrison11  the  question  was  raised  whether  this  gov- 
ernment might  lawfully  continue  its  existence  after  the  date  of 
the  treaty  of  peace  by  which  the  territory  was  formally  annexed 
to  the  United  States,  and  until  Congress  had  legislated  for  its 
government.  In  deciding  this  in  the  affirmative,  the  court  said : 
"  The  territory  had  been  ceded  as  a  conquest,  and  was  to  be  pre- 
served and  governed  as  such  until  the  sovereignty  to  which  it  had 
passed  had  legislated  for  it.  That  sovereignty  was  the  United 
States,  under  the  Constitution,  by  which  power  had  been  given  to 
Congress  to  dispose  of  and  make  all  needful  rules  and  regulations 
respecting  the  territory  or  other  property  belonging  to  the  United 
States,  with  the  power  also  to  admit  new  States  into  this  Union, 
with  only  such  limitations  as  are  expressed  in  the  section  in  which 
this  power  is  given.  The  government  of  which  Colonel  Mason  was 
the  executive,  had  its  origin  in  the  lawful  exercise  of  a  belligerent 
right  over  a  conquered  territory.  It  has  been  instituted  during 
the  war  by  the  command  of  the  President  of  the  United  States. 
It  was  the  government  when  the  Territory  was  ceded  as  a  c<>n- 

pleasure.  It  may  prescribe  the  revenues  to  be  paid,  and  apply  them  to  its 
own  use  or  otherwise.  It  may  do  anything  necessary  to  strengthen  itself  and 
weaken  the  enemy.  There  is  no  limit  to  the  powers  that  may  he  exerted  in 
such  cases,  save  those  which  are  found  in  the  laws  and  usages  of  war.  These 
principles  have  the  sanction  of  all  publicists  who  have  considered  the  subject. 
They  have  been  repeatedly  recognized  and  applied  by  this  court.  Cross  v. 
Harrison,  16  How.  164;  14  L.  ed.  889;  Leitensdorfer  v.  Webb,  20  How.  176; 
15  L.  ed.  891;  The  Grapeshot,  9  WalL  129;  19  L.  ed.  651.  In  the  case 
last  cited  the  President  had,  by  Proclamation,  estahlished  in  Xew  Orleans  a 
Provisional  Court  for  the  State  of  Louisiana,  and  defined  its  jurisdiction. 
This  court  held  the  Proclamation  a  rightful  exercise  of  the  power  of  the 
Executive,  the  court  valid,  and  its  decrees  binding  upon  the  parties  brought 
heioce  it.  In  such  cases  the  laws  of  war  take  the  place  of  the  Constitution 
and  laws  of  the  United  States  as  applied  in  time  of  peace." 
ii  16  How.  164;  14  L.  ed.  889. 


Government  of  Acquired  Territory. 

quest,  and  it  did  not  cease,  as  a  matter  of  course,  or  as  a  necessary 
consequence  of  the  restoration  of  peace.  The  President  might 
have  dissolved  it  hy  withdrawing  the  army  and  navy  officers  who 
administered  it,  but  he  did  not  do  so.  Congress  could  have  put 
an  end  to  it,  but  that  was  not  done.  The  right  inference  from  the 
inaction  of  both  is,  that  it  was  meant  to  be  continued  until  it  had 
been  legislatively  changed.  Xo  presumption  of  a  contrary  inten- 
tion can  be  made.  Whatever  may  have  been  the  causes  of  delay, 
it  must  be  presumed  that  the  delay  was  consistent  with  the  true 
policy  of  the  government.  And  the  more  so  as  it  was  continued 
until  the  people  of  the  territory  met  in  convention  to  form  a  state 
government,  which  was  subsequently  recognized  by  Congress 
under  its  powers  to  admit  new  States  into  the  Union." 

The  government  maintained  by  the  President  over  a  conquered 
territory  being  belligerent,  is,  as  is  stated  in  the  paragraph  quoted 
above,  absolute  in  character,  according  to  the  general  doctrines 
of  international  law  regarding  military  occupation:  "  It  may  do 
anything  necessary  to  strengthen  itself  and  weaken  the  enemy. 
There  is  no  limit  to  the  powers  that  may  be  exerted  in  such  cases, 
save  those  which  are  found  in  the  laws  and  usages  of  war."  12 

12  When,  after  the  capitulation  of  the  Spanish  forces  in  Santiago,  Cuba,  tho 
military  forces  of  tho  United  States  took  possession  of  the  eastern  part  of  the 
jn  vince,  the  President  instructed  the  military  commander,  infer  alia,  as  fol- 
lows: ■  The  first  effect  of  the  military  occupation  of  the  enemy's  territory 
is  the  severance  of  the  former  political  relations  of  the  inhabitants  and  the 
establishment  of  a  new  political  power.  Under  this  changed  condition  of 
things  the  inhabitants,  so  long  as  they  perform,  their  duties,  are  entitled  to 
security  in  their  persons  and  property  and  in  all  their  rights  and  relations. 
All  persons  who  either  by  active  aid  or  by  honest  submission, 
co-operate  with  the  United  States  to  give  effect  to  this  beneficent  purpose  will 
receive  the  reward  of  it3  support  and  protection.  Our  occupation  shotild  be 
83  free  from  severity  a-  possible.  Though  the  powers  of  the  military  occupant 
are  absolute  and  supreme  and  immediately  operate  upon  the  political  con- 
dition of  the  inhabitants,  the  municipal  hiw«  of  the  conquered  territory,  such 
as  afTeot  private  rights  of  perWM  and  property  and  provide  for  the  punish- 
ment of  crime,  are  considered  as  continuing  in  foree,  so  far  as  they  are  com- 
patible with  the  new  order  of  things,  until  they  are  suspended  or  superseded 
by  the  occupying  belligerent:  and  in  practice  they  are  not  usually  abrogated, 
but  are  allowed  to  remain  in  force  and  to  be  administered  by  the  ordinary 
tribunals,  substantially  as  they  were  before  occupation.  This  enlightened 
practice  i=,  so  far  as  possible,  to  be  adhered  to  on  the  present  occasion.     The 


3&0  United  States'  Constitutional  Law. 

We  have  seen  from  the  preceding  cases  that  the  power  of  the 
President,  as  Commander-in-Chief  of  the  army  and  navy,  is  prac- 
tically absolute  over  conquered  territory.  And  also,  that  this 
power  persists  after  the  formal  annexation  of  the  territory  in 
question  to  the  United  States  and  until  Congress  legislates  for  its 

judges  and  other  officials  connected  with  the  administration  of  justice  may.  if 
they  accept  the  supremacy  of  the  United  States,  continue  to  administer  the 
ordinary  law  of  the  land,  as  between  man  and  man,  under  the  supervision  of 
the  American  commander-in-chief.  The  native  constabulary  will,  so  far  as 
may  be  practicable,  be  preserved.  The  freedom  of  the  people  to  pursue  their 
accustomed  occupation  will  be  abridged  only  when  it  may  be  necessary  to  do 
so.  While  the  rule  of  conduct  of  the  American  commander-in-chief  will  be 
such  as  has  just  been  defined,  it  will  be  his  duty  to  adopt  measures  of  a 
different  kind  if,  unfortunately,  the  course  of  the  people  should  render  such 
measures  indispensable  to  the  maintenance  of  law  and  order.  He  will  then 
possess  the  power  to  replace  or  expel  the  native  officials  in  part  or  alto- 
gether; to  substitute  new  courts  of  his  own  constitution  for  those  that  now 
exist,  or  to  create  such  new  or  supplementary  tribunals  as  may  be  ne*  es-ary. 
In  the  exercise  of  these  high  powers  the  commander  must  be  guided  by  his 
judgment  and  his  experience  and  a  high  sense  of  justice.  One  of  the  most 
important  and  most  practical  problems  with  which  it  will  be  necessary  to 
deal  is  that  of  the  treatment  of  property  and  the  collection  and  administra- 
tion of  the  revenues.  It  is  conceded  that  all  public  funds  and  securities 
belonging  to  the  government  of  the  country  in  its  own  right,  and  all  arms 
and  supplies  and  other  movable  property  of  such  government,  may  be  seized 
by  the  military  occupant  and  converted  to  his  own  use.  The  real  property 
of  the  State  he  may  hold  and  administer,  at  the  time  enjoying  the  revenjies 
thereof,  but  he  is  not  to  destroy  it  save  in  the  case  of  military  necessity. 
All  public  means  of  transportation,  such  as  telegraph  lines,  cables,  railways, 
and  boats,  belonging  to  the  State  may  be  appropriated  to  his  use,  but,  unless 
in  case  of  military  necessity,  they  are  not  to  be  destroyed.  All  churches  and 
buildings  devoted  to  religious  worship  and  to  the  arts  and  sciences,  all  school- 
houses,  are,  so  far  as  possible,  to  be  protected,  and  all  destruction  or  inten- 
tional defacement  of  such  places,  of  historical  monuments  or  archives,  or 
works  of  science  or  art  is  prohibited,  save  when  required  by  urgent  military 
necessity.  Private  property,  whether  belonging  to  individuals  or  corpora- 
tions, is  to  be  respected,  and  can  be  confiscated  only  for  cause.  (Means  of 
transportation,  such  as  telegraph  lines  or  cables,  railways  and  boats,  may, 
although  they  belong  to  private  individuals  or  corporations,  be  seized  by  the 
military  occupant,  but  unless  destroyed  under  military  necessity  are  not  to 
be  retained.  While  it  is  held  to  be  the  right  of  the  conqueror  to  levy  con- 
tributions upon  the  enemy  in  their  seaports,  towns,  or  provinces  which  may 
be  in  his  military  possession  by  conquest,  and  to  apply  the  proceeds  to  defray 
the  expense  of  the  war,  this  right  is  to  be  exercised  within  such  limitations 
that  it  may  not  savor  of  confiscation.     As  the  result  of  military  occupation 


Government  of  Acquired  Territory.  391 

government.  It  would  appear,  however,  that  during  this  latter 
period,  the  President's  power  is  not  so  absolute  as  in  the  period 
prior  to  annexation.  Absolute  power,  according  to  American  con- 
stitutional doctrines,  is  only  justified  by  military  necessity,  and, 
therefore,  with  the  cessation  of  hostilities  and  the  annexation  of 
the  territory  by  which  it  is  brought  within  the  general  province 
of  the  American  doctrine,  there  spring  up  certain  limitations 
upon  the  President's  governing  power.13  The  extent  of  these 
limitations  will  be  discussed  in  a  later  chapter  dealing  with 
martial  and  military  law,  and  with  the  doctrines  laid  down  by 
the  Supreme  Court  in  the  "  Insular  Cases  "  determining  the  po- 
litical status  and  the  civil  rights  of  the  inhabitants  of  the  islands 
acquired  in  1898  from  Spain. 

the  taxes  and  duties  payable  by  the  inhabitants  to  the  former  government 
become  payable  to  the  military  occupant,  unless  he  sees  fit  to  substitute  for 
them  other  rates  or  modes  of  contribution  to  the  expenses  of  the  government. 
The  moneys  so  collected  are  to  be  used  for  the  purpose  of  paying  the  expenses 
of  government  under  the  military  occupation,  such  as  the  salaries  of  the  judges 
and  the  police,  and  for  the  payment  of  the  expenses  of  the  army.  Private 
property  taken  for  the  use  of  the  army  is  to  be  paid  for,  when  possible,  in 
cash  at  a  fair  valuation,  and  when  payment  in  cash  is  not  possible  receipts 
are  to  be  given.  All  ports  and  places  in  Cuba  which  may  be  in  the  actual 
possession  of  our  land  and  naval  forces  will  be  opened  to  the  commerce  of  all 
neutral  nations,  as  well  as  our  own,  in  articles  not  contraband  of  war,  upon 
payment  of  the  prescribed  rates  of  duty  which  may  be  in  force  at  the  time  of 
the  importation."  Moore  Digest  of  Int.  Law,  VII,  §  1143.  The  order  was 
issued  July  18,  1898. 

is  See,  for  example,  the  language  of  the  court  in  Dooley  v.  United  States, 
182  U.  S.  222;  21  Sup.  Ct.  Rep.  762;  45  L.  ed.  1074. 


CHAPTER   XXVIII. 

THE  ANNEXATION  OF  TERRITORY  BY  TREATY. 

§  168.  Congressional  Action  not  Needed  to  Complete  Annexa- 
tion of  Territory  Acquired  by  Treaty. 

That,  under  the  treaty-making  power  provided  in  the  Constitu- 
tion, a  foreign  country  may  be  brought  under  the  sovereignty  of 
the  United  States,  and  thus,  from  the  viewpoint  of  international 
law,  become  a  part  of  it,  is,  as  we  have  seen,  beyond  question. 
In  De  Lima  v.  Bidwell,1  one  of  the  "  Insular  Cases,"  decided  in 
1901,  was  urged  the  point,  however,  that,  before  such  an  annexed 
territory  can  become  "  domestic ''  territory  and  as  such  be 
brought,  ipso  facto,  under  the  operation  of  the  federal  laws  gen- 
erally, an  act  of  Congress  to  that  effect  is  necessary. 

Prior  to  this  De  Lima  case,  this  question  had  been  several  times 
raised,  especially  with  reference  to  the  immediate  applicability  of 
the  revenue  laws  of  the  United  States  to  annexed  territories,  but 
had  never  been  thoroughly  discussed,  nor  had  administrative  prac- 
tice always  been  harmonious  with  judicial  pronouncements,  or 
these  judicial  pronouncements  harmonious  with  one  another. 

In  Fleming  v.  Page,2  decided  in  1S50,  it  was  held,  as  we  have 
seen,  that  conquest  and  military  occupation  of  a  foreign  district 
did  not,  ipso  facto,  make  that  district  a  part  of  the  United  States, 
and,  therefore,  that  duties  were  properly  levied  upon  goods  im- 
ported therefrom  into  the  United  States  under  the  act  of  Con- 
gress imposing  duties  upon  imports  from  foreign  countries. 
Taney,  however,  in  his  opinion  went  further  than  the  facts  of  the 
case  necessitated,  and  adverted  to  the  circumstance  that  the  ad- 
ministrative department  of  the  government  had,  as  a  rule,  con- 
tinued to  treat  territory  acquired  by  treaty  as  foreign  until 
Congress  by  legislation  had  extended  over  it  its  revenue  laws.3 

i  182  U.  S.  1;  21  Sup.  Ct.  Rep.  743;  45  L.  ed.  1041.     . 

2  9  How.  603 ;  13  L.  ed.  276. 

3  He  said:  "  This  construction  of  the  revenue  laws  has  been  uniformly- 
given  by  the  administrative  department  of  the  government  in  every  case  that 

[392] 


The- Annexation   uf    Iekkitory  by  Treaty.  393 

§  169.  Cross  v.  Harrison. 

In  Cross  v.  Harrison,4  however,  decided  in  1853,  it  was  held 
by  a  unanimous  court,  including  Chief  Justice  Taney  himself, 
that  by  the  ratitication  of  the  treaty  of  1S4S  between  Mexico  and 
the  United  States,  California  became  a  part  of  the  United  States, 
and  the  tariff  laws  of  the  United  States  then  in  force  ipso  facto 
applicable  to  it 

The  treaty  which  fixed  the  boundary  between  Mexico  and  the 
Unite.'.  States  was  ratiiied  May  30,  1848.  The  de  facto  military 
government  continued  in  force  after  this  date,  but,  after  official 

has  come  before  it.  And  it  lias,  indeed,  been  given  in  cases  where  there 
appears  to  have  been  stronger  ground  for  regarding  the  place  of  shipment  as 
a  domestic  port.  For  after  Florida  had  been  ceded  to  the  United  States,  and 
the  forces  of  the  United  States  had  taken  possession  of  Pensacola,  it  was 
decided  by  the  Treasury  Department,  that  goods  imported  from  Pensacola 
before  an  act  of  Congress  was^jpassed  erecting  it  into  a  collection  district, 
and  authorizing  the  appointment  of  a  collector,  were  liable  to  duty.  That  is, 
although  Florida  had  by  cession,  actually  become  a  part  of  the  United 
States,  and  was  in  our  possession,  yet  under  our  revenue  laws,  its  ports  must 
ba  regarded  a3  foreign  until  they  were  established  as  domestic  by  act  of 
Congress ^  and  it  appears  that  this  decision  was  sanctioned  at  the  time  by  the 
Attorney-General  of  the  United  States,  the  law  officer  of  the  government. 
And,  although  not  so  directly  applicable  to  the  case  before  us,  yet  the 
decisions  of  the  Treasury  Department  in  relation  to  Amelia  Island,  and 
certain  ports  in  Louisiana,  after  that  province  had  been  ceded  to  the  United 
States,  were  both  made  upon  the  same  grounds.  And  in  the  latter  case,  after 
a  cu-tom-house  had  been  established  by  law  at  New  Orleans,  the  collector  at 
that  place  was  instructed  to  regard  as  foreign  ports  Baton  Rouge  and  other 
settlements  still  in  the  possession  of  Spain,  whether  on  the  Mississippi,  Iber- 
ville, or  the  seacoast.  The  department  in  no  instance  that  we  are  aware  of, 
since  the  establishment  of  the  government,  has  ever  recognized  a  place  in  a 
newly-acquired  country  as  a  domestic  port.  from,  which  the  coasting  trade 
might  be  carried  on,  unless  it  had  been  previously  made  so  by  an  act  of 
Congress*  The  principle  thus  adopted  and  acted  upon  by  the  Executive 
Department  of  the  government  has  been  sanctioned  by  the  decisions  in  this 
court  and  the  circuit  courts  whenever  the  question  came  before  them.  We 
do  not  propose  to  comment  upon  the  different  cases  cited  in  the  argument. 
It  is  sufficient  to  say  that  there  is  no  discrepancy  between  them.  And  all  of 
them,  so  far  as  they  apply,  maintain  that  under  our  revenue  laws  every  port 
is  regarded  as  a  foreijm  one.  unless  the  custom-house  from  which  the  vessel 
clears  is  within  a  collection  district  established  by  act  of  Congress,  and  the 
officers  granting  the  clearance  exercise  their  functions  under  the  authority  and 
control  of  the  laws  of  the  United  States." 
*  16  How.  164 ;  14  L.  ed.  889. 


394  United  States  Coxstitutioxal  Law. 

notice  of  the  treaty  was  received,  the  commander  in  charge  ceased 
collecting  the  military  duties  which  he  had  been  imposing,  and 
substituted  therefor  duties  imposed  by  the  revenue  laws  of  the 
United  States.  He  reported  this  to  the  President  and  his  action 
was  approved.  By  a  letter  of  October  9,  1848,  the  Secretary  of 
War  instructed  the  commander  that  "  the  government  de  facto 
can  of  course  exercise  no*  powers  inconsistent  with  the  provisions 
of  the  Constitution  of  the  United  States,  which  is  the  supreme 
law  of  the  States  and  Territories  of  our  Union.  For  this  reason 
no  import  duties  can  be  levied  in  California  on  articles  of  growth, 
produce,  or  manufacture  of  any  State  or  Territory  of  the  United 
States,  and  no  such  duties  can  be  imposed  in  any  part  of  the 
Union  on  the  productions  of  California ;  nor  can  duties  be  charged 
on  such  foreign  productions  as  have  already  paid  duties  in  any 
port  of  the  United  States."  8 

5  The  Secretary  of  the  Treasury  also  at  this  time  issued  a  circular  ( October 
7,  1848),  in  which  he  declared:  "By  the  treaty  with  Mexico,  California  is 
annexed  to  this  Republic,  and  the  Constitution  of  the  United  States  is  ex- 
tended over  that  Territory  and  is  in  full  force  throughout  its  limits."  "  Con- 
gress also,"  he  added,  "  by  several  enactments  subsequent  to  the  ratification  of 
the  treaty,  have  distinctly  recognized  California  as  a  part  of  the  Union,  and 
have  extended  over  it  in  several  particulars  the  laws  of  the  United  States. 
Under  these  circumstances  the  following  instructions  are  issued  by  this 
Department : 

"  First.  All  articles  of  the  growth,  produce,  or  manufacture  of  California 
shipped  therefrom  at  any  time  since  the  30th  of  May  last  are  entitled  to 
admission  free  of  duty  into  all  ports  of  the  United  States. 

"  Second.  All  articles  of  the  growth,  produce,  or  manufacture  of  the  United 
States  are  entitled  to  admission  free  of  duty  into  California,  as  are  also  all 
foreign  goods  which  are  exempt  from  duty  by  the  laws  of  Congress,  or  on 
which  goods  the  duties  prescribed  by  those  laws  have  been  paid  to  any 
collector  of  the  United  States  previous  to  their  introduction  into  California. 

"  Third.  Although  the  Constitution  of  the  United  States  extends  to  Cali- 
fornia, and  Congress  has  recognized  it  by  law  as  a  part  of  the  Union  and  legis- 
lated over  it  as  such,  yet  it  is  not  brought  by  law  within  the  limits  of  any 
collection  district,  nor  has  Congress  authorized  the  appointment  of  any  officers 
to  collect  the  revenue  accruing  on  the  import  of  foreign  dutiable  goods  into 
that  territory.  Under  these  circumstances, , although  this  Department  may 
be  unable  to  collect  the  duties  accruing  on  importations  from  foreign  countries 
into  California,  yet  if  foreign  dutiable  goods  should  be  introduced  there  and 
shipped  thence  to  any  port  or  place  of  the  United  States  they  will  be  subject 
to  duty,  as  also  to  all  the  penalties  prescribed  by  law  when  such  importation 
is  attempted  without  payment  of  duties." 


The  Annexation  of  Territory  by  Treaty.  395 

Acting  in  accordance  with  these  instructions,  the  existing  tariff 
and  navigation  laws  of  the  United  States  were  enforced  by  the 
de  facto  government.  In  Cross  v.  Harrison  the  legality  of  this 
action  was  sustained.  In  passing  upon  the  status  and  power  of 
the  government  after  the  treaty  of  peace,  the  court  said :  "  It  was 
urged  that  our  revenue  laws  covered  only  so  much  of  the  territory 
of  the  United  States  as  had  been  divided  into  collection  districts, 
and  that  out  of  them  no  authority  had  been  given  to  prevent  the 
landing  of  foreign  goods,  or  to  charge  duties  upon  them,  though 
such  landing  had  been  made  within  the  territorial  limits  of  the 
United  States.  To  this  it  may  be  successfully  replied  that  collec- 
tion districts  and  ports  of  entry  were  no  more  than  designated 
localities  within  and  at  which  Congress  had  extended  a  liberty 
of  commerce  in  the  United  States,  and  that  so  much  of  its  terri- 
tory as  was  not  within  any  collection  district  must  be  considered  as 
having  been  withheld  from  that  liberty.  It  is  very  well  under- 
stood to  be  a  part  of  the  laws  of  nations,  that  each  nation  may 
designate,  upon  its  own  terms,  the  ports  and  places  within  its 
territory  for  foreign  commerce,  and  that  any  attempt  to  introduce 
foreign  goods  elsewhere  within  its  jurisdiction  is  a  violation  of  its 
sovereignty.  It  is  not  necessary  that  such  should  be  declared  in 
terms,  or  by  any  degree  or  enactment,  the  expressed  allowances 
being  the  limit  of  the  liberty  given  to  foreigners  to  trade  with 
such  nations.  Upon  this  principle,  the  plaintiffs  had  no  right  of 
trade  with  California  with  foreign  goods,  excepting  from  the  per- 
mission given  by  the  United  States  under  the  civil  government 
and  war  tariff  which  had  been  established  there.  And  when  the 
country  was  ceded  as  a  conquest,  by  a  Treaty  of  Peace,  no  larger 
liberty  to  trade  resulted.  By  the  ratifications  of  the  Treaty,  Cali- 
fornia became  a  part  of  the  United  States.  And  as  there  is  noth- 
ing differently  stipulated  in  the  Treaty  with  respect  to  commerce, 
it  became  instantly  bound  and  privileged  by  the  laws  which  Con- 
gress had  passed  to  raise  a  revenue  from  duties  on  imports  and 
tonnage.  .  .  .  The  right  claimed  to  land  foreign  goods  within 
the  United  States  at  any  place  out  of  a  collection  district,  if  al- 
lowed, would  be  a  violation  of  that  provision  in  the  Constitution 


39<)  United  States  Constitutional  Law. 

which  enjoins  that  all  duties,  imposts  and  excises,  shall  be  uniform 
throughout  the  United  States.  Indeed,  it  must  be  very  clear  that 
no  such  right  exists,  and  that  there  is  nothing  in  the  condition 
of  California  to  exempt  importers  of  foreign  goods  into  it  f ; 
the  payment  of  the  same  duties  which  were  chargeable  in  the  other 
ports  of  the  United  States.  As  to  the  denial  of  the  authority  of 
the  President  to  prevent  the  landing  of  foreign  goods  in  the 
tinted  States  out  of  a  collection  district,  it  can  only  be  necessary 
to  say,  if  he  did  not  do  so,  it  would  be  a  neglect  of  his  constitu- 
tional obligation  '  to  take  care  that  the  laws  be  faithfully  exe- 
cuted*' ...  In  respect  to  the  suggestion  that  it  has  not  been 
the  practice  of  the  United  States  to  collect  duties  upon  importa- 
tions of  foreign  goods  into  a  ceded  Territory  until  Congress  had 
passed  an  act  for  that  purpose,  counsel  cited  the  cases  of  Louisiana 
and  Florida.  The  reply  is,  that  the  facts  in  respect  to  both  have 
not  been  recollected.  There  was  no  forbearance  in  either  in- 
stance, in  respect  to  duties  upon  imports,  until  Congress  had 
acted." 

§  170.  De  Lima  v.  Bid  well. 

In  De  Lima  v.  Bidwell,6  with  reference  to  the  island  of  Porto 
Itico,  the  court  held  itself  governed  by  the  doctrine  declared  in 
Cross  v.  Harrison.  It  agreed  with  the  declaration  in  Fleming  v. 
Page  that  by  mere  military  occupation  a  port  did  not  become 
"  domestic."  and  as  such  subject  to  the  general  revenue  laws  of 
the  United  States,  but  with  reference  to  the  dictum  of  Taney  that 
it  remained  foreign  because  the  United  States  customs  laws  had 
not  been  formally  extended  over  it,  the  majority  in  their  opinion 
observed :  "  While  we  see  no  reason  to  doubt  the  conclusion  of  the 
court  that  the  port  of  Tampico  was  still  a  foreign  port,  it  is  not 
perceived  why  the  fact  that  there  was  no  act  of  Congress  establ idl- 
ing a  custom-house  there,  or  authorizing  the  appointment  of  a 
collector,  should  have  prevented  the  collector  appointed  by  the 
military  commander  from  granting  the  usual  documents  required 
to  be  .issued  to  a  vessel  engaged  in  the  coasting  trade.    A  collector, 

6  182  U.  S.  1;  21  Sup.  Ct.  Rep.  743;  45  L.  ed.  1041. 


The   Axxexatiox  of  Territory  by  Treaty.  397 

though  appointed  by  a  military  commander,  may  be  .presumed  to 
have  the  ordinary  power  of  a  collector  under  an  act  of  Congress, 
with  authority  to  grant  clearances  to  ports  within  the  United 
States,  though,  of  course,  he  would  have  no  power  to  make  a 
domestic  port  of  what  was  in  reality  a  foreign  port."  7 

After  quoting  at  length,  and  with  approval,  from  Cross  r.  Har- 
rison, the  majority  opinion  continues:  "The  opinion,  which  is 
quite  a  long  one,  establishes  the  three  following  propositions: 
(1 )  Trmt  under  the  war  power  the  military  governor  of  California 
WM  authorized  to  prescril>e  a  scale  of  duties  upon  importations 
from  foreign  countries  to  San  Francisco,  and  to  collect  the  same 
through  a  collector  appointed  by  himself,  until  the  ratification  of 
the  treaty  of  peace.  (2  )  That  after  such  ratification  duties  were 
legally  exacted  under  the  tariff  laws  of  the  United  States,  which 
took  effect  immediately.  (3)  That  the  civil  government  estab- 
lished in  California  continued,  from  the  necessities  of  the  case, 
until  Conggm  provided  a  territorial  government.  It  will  be  seen 
that  the  three  propositions  involve  a  recognition  of  the  fact  that 
California  became  domestic  territory  immediately  upon  the  rati- 
fication of  the  treaty,  or,  to  speak  more  accurately,  as  soon  as  this 
was  officially  known  in  California.  The  doctrine  that  a  port 
ceded  to  and  occupied  by  us  does  not  lose  its  foreign  character 
until  Congress  has  acted  and  a  collector  is  appointed  was  dis- 
tinctly repudiated  with  the  apparent  acquiesence  of  Chief  Jus- 
tice Taney,  who  wrote  the  opinion  in  Fleming  v.  Page,  and  still 
remained  the  Chief  Justice  of  the  court.  The  opinion  does  not 
involve  directly  the  question  at  issue  in  this  case ;  whether  goods 
carried  from  a  port  in*  a  ceded  territory  directly  to  Xew  York 
are  subject  to  duties,  since  the  duties  in  Cross  v.  Harrison  were 
exacted  upon  foreign  goods  imported  into  San  Francisco  as  an 
American  port;  but  it  is  impossible  to  escape  the  logical 
inference  from  that  case  that  goods  carried  from  San  Francisco 
to  Xew  York  after  the  ratification  of  the  treaty  would  not  be 
considered  as  imported  from  a  foreign  country." 

tjSee  ante,  p.  3S4.  fi»r  manner  in  which  the  court  harmonizes  the  doetiiue 
stated  in  U.  S.  v.  Rice  with  that  declared  in  Fleming  v.  Page. 


398  United  States  Constitutional  Law. 

The  court  then  examines  the  practice  and  rulings  of  the  execu- 
tive department  of  the  United  States  with  respect  to  the  status 
of  newly  acquired  territories  prior  to  their  status  being  settled 
by  acts  of  Congress  and  finds  these  rulings  and  practice,  with  the 
single  exception  of  an  order  of  Secretary  of  State  Gallatin  in 
1803,  to  be  in  conformity  with  the  position  of  the  court  in  Cross 
v.  Harrison. 

As  showing  the  construction  put  upon  this  question  by  the 
legislative  department,  the  court  quotes  from  section  2  of  the 
Foraker  Act  establishing  civil  government  in  Porto  Rico,  which 
"  makes  a  distinction  between  foreign  countries  and  Porto  Rico, 
by  enacting  that  the  same  duties  shall  be  paid  upon  '  all  articles 
imported  into  Porto  Eico  from  ports  other  than  those  of  the 
United  States,  which  are  required  by  law  to  be  collected  upon 
articles  imported  into  the  United  States  from  foreign  countries.'  " 

The  opinion,  then,  summing  up  the  precedents,  says :  "  From 
this  resume  of  the  decisions  of  this  court,  the  instructions  of  the 
executive  department,  and  the  above  act  of  Congress,  it  is  evi- 
dent that,  from  1803,  the  date  of  Mr.  Gallatin's  letter,  to  the 
present  time,  j:here  is  not  a  shred  of  authority,  except  the  dictum 
in  Fleming  v.  Page  (practically  overruled  in  Cross  v.  Harrison), 
for  holding  that  a  district  ceded  to  and  in  the  possession  of  the 
United  States  remains  for  any  purpose  a  foreign  country.  Both 
these  conditions  must  exist  to  produce  a  change  of  nationality  for 
revenue  purposes.  Possession  is  not  alone  sufficient  as  was  held 
in  Fleming  v.  Page;  nor  is  a  treaty  ceding  such  territory  suffi- 
cient without  a  surrender  of  possession.  Keene  v.  M'Donough, 
8  Pet.  308 ;  8  L.  ed.  955 ;  Pollard  v.  Kibbe,  14  Pet.  353 ;  10 
L.  ed.  490;  Hallett  v.  Doe  ex  dem,  Hunt,  7  Ala.  899;  The 
Fama,  5  C.  Rob.  106.  The  practice  of  the  executive  departments, 
thus  continued  for  more  than  half  a  century,  is  entitled  to  great 
weight,  and  should  not  be  disregarded  nor  overturned  except  for 
cogent  reasons,  and  unless  it  be  clear  that  such  construction  be 
erroneous.  United  States  v.  Johnston,  124  U.  S.  236 ;  8  Sup.  Ct. 
Rep.  446;  31  L.  ed.  389,  and  other  cases  cited." 


The  Annexation  of  Tekkitoky  by  Treaty.  399 

The  court  then  goes  on  to  declare  that  even  were  the  question 
presented  as  an  original  one,  it  would  be  irresistibly  impelled 
to  the  conclusion  which  the  precedents  had  furnished.  This 
result,  it  is  argued,  is  deducible  from  the  fact  that  by  the  Con- 
stitution treaties  equally  with  acts  of  Congress  are  declared  to 
be  the  supreme  law  of  the  land,  and  that  one  of  the  ordinary  inci 
dents  of  a  treaty  is  the  cession  of  territory.  "  The  territory  thus 
acquired  is  acquired  as  absolutely  as  if  the  annexation  were  made, 
as  in  the  case  of  Texas  and  Hawaii,  by  an  act  of  Congress." 

"  The  theory  that  a  country  remains  foreign  with  respect  to  the 
tariff  laws  until  Congress  has  acted  by  embracing  it  within  the 
customs  union  presupposes  that  a  country  may  be  domestic  for 
one  purpose  and  foreign  for  another.  It  may  undoubtedly  become 
necessary,  for  the  adequate  administration  of  a  domestic  territory, 
to  pass  a  special  act  providing  the  proper  machinery  and  officers, 
as  the  President  would  have  no  authority,  except  under  the  war 
power,  to  administer  it  himself;  but  no  act  is  necessary  to  make  it 
domestic  territory  if  once  it  has  been  ceded  to  the  United  States. 
.  .  .  This  theory  also  presupposes  that  territory  may  be  held 
indefinitely  by  the  United  States;  that  it  may  be  treated  in  every 
particular,  except  for  tariff  purposes,  as  domestic  territory;  that 
laws  may  be  enacted  and  enforced  by  officers  of  the  United  States 
sent  there  for  that  purpose ;  that  insurrections  may  be  suppressed, 
wars  carried  on,  revenues  collected,  taxes  imposed;  in  short,  that 
everything  may  be  done  which  a  government  can  do  within  its 
own  boundaries,  and  yet  that  the  territory  may  still  remain  a 
foreign  country.  That  this  state  of  things  may  continue  for  years, 
for  a  century  even,  but  that  until  Congress  enacts  otherwise,  it 
still  remains  a  foreign  country.  To  hold  that  this  can  be  done  as 
matter  of  law  we  deem  to  be  pure  judicial  legislation.  We  find 
no  warrant  for  it  in  the  Constitution  or  in  the  powers  conferred 
upon  this  court.  It  is  true  the  nonaction  of  Congress  may  occa- 
sion a  temporary  inconvenience ;  but  it  does  not  follow  that  courts 
of  justice  are  authorized  to  remedy  it  by  inverting  the  ordinary 
meaning  of  words." 


400  United  States  Coxjjtit  choral  Law. 

§  171.  Dooley  v.  United  States. 

Applying  the  doctrine  of  De  Lima  v.  Bidwell,  the  Supreme 
Court  in  another  of  the  Insular  Cases  (Dooley  v.  United  States),8 
held  that  though,  after  the  treaty  of  peace  providing  for  the 
annexation  of  Porto  Rico,  the  military  government  might  continue 
until  Congress  should  provide  the  island  with  a  civil  government 
(according  to  the  doctrine  of  Cross  v.  Harrison),  the  island  was 
no  longer  "  foreign  territory  "  and,  therefore,  under  the  then  exist- 
ing revenue  laws  of  the  United  States,  providing  for  the  levying 
of  customs  duties  on  goods  imported  from  foreign  countries,  that 
duties  might  not  be  levied  upon  importations  into  the  United 
States  from  Porto  Rico,  nor  from  the  United  States  into  that 
island.  With  reference  to  these  latter,  the  court  said :  "  The 
spirit  as  well  as  the  letter  of  the  tariff  laws  admits  of  duties 
being  levied  by  a  military  commander  only  upon  importations 
from  foreign  countries;  and,  while  his  power  is  necessarily  des- 
potic, this  must  be  understood  rather  in  an  administrative  than 
in  a  legislative  sense.  While  in  legislating  for  a  conquered 
country  he  may  disregard  the  laws  of  that  country,  he  is  aot 
wholly  above  the  laws  of  his  own.  For  instance,  it  is  clear  that, 
while  a  military  commander  during  the  Civil  War  was  in  the 
occupation  of  a  southern  port  he  could  impose  duties  upon  mer- 
chandise arriving  from  abroad,  it  would  hardly,  be  contended  that 
he  could  also  impose  duties  upon  merchandise  arriving  from 
ports  of  his  own  country.  ,  His  power  to  administer  would  be 
absolute,  but  his  power  to  legislate  would  not  be  without  certain 
restrictions  —  in  other  words,  they  would  not  extend  beyond  the 
necessities  of  the  case.  Thus,  in  the  case  of  The  Admittance 
(Jecker  v.  Montgomery,  13  How.  498;  14  L.  ed.  240)  it  was 
held  that  neither  the  President  nor  the  military  commander  could 
establish  a  court  of  prize  competent  to  take  jurisdiction  of  a  case 
of  capture,  whose  judgments  would  be  conclusive  in  other  ad- 
miralty courts.  It  was  said  that  the  courts  established  in  Mexico 
during  the  war  '  were  nothing  more  than  the  agents  of  the  mili- 
tary power,  to  assist  it  in  preserving  order  in  the  conquered  terri- 

8  182  U.  S.  222;  21  Sup.  Ct.  Rep.  702;  45  L.  ed.  1074. 


The  Annexation  oe  Territory  by  Theaty.  401 

tory,  and  to  protect  the  inhabitants  in  their  persona  and  property, 
while  it  was  occupied  by  the  American  arms.  They  were  sub- 
ject to  the  military  power,  and  their  decisions  under  its  control, 
whenever  the  commanding  officer  thought  proper  to  interfere. 
They  were  not  courts  of  the  United  States-,  and  had  no  right  to 
adjudicate  upon  a  question  of  prize  or  no  prize,  although  Con- 
gress, in  the  exercise  of  its  general  authority  in  relation  to  the 
national  courts,  would  have  power  to  validate  their  action.  The 
Grapeshot,  sub  nom.  The  Grapeshot  v.  Wallerstein,  9  Wall.  129, 
19  L.  ed.  651.  So,  too,  in  Mitchell  y.  Harmony  (13  How.  115; 
11  L.  ed.  75)  it  was  held  that,  where  the  plaintiif  entered  Mexico 
during  the  war  with  that  country,  under  a  permission  of  the  com- 
mander to  trade  with  the  enemy  and  under  the  sanction  of  the 
executive  power  of  the  United  States,  his  property  would  not  be 
liable  to  seizure  by  law  for  such  trading,  and  that  the  officer  direct- 
ing the  seizure  was  liable  to  an  action  for  the  value  of  the  prop- 
erty taken.  To  the  same  effect  is  Mostvn  v.  Fabrigas,  1  Cowp. 
fc86i  In  Raymond  y.  Thomas  (91  U.  S.  712;  23  L.  ed.  434)  a 
special  order,  by  the  officer  in  command  of  the  forces  in  the  State 
of  South  Carolina,  annulling  a  decree  rendered  by  a  court  of 
chancery  in  that  State,  was  held  to  be  void.  In  delivering  the 
opinion  Mr.  Justice  Swayne  observed :  '  Whether  Congress  could 
have  conferred  the  power  to  do  such  an  act  is  a  question  we  are 
not  called  upon  to  consider.  It  is  an  unbending  rule  of  law,  that 
the  exercise  of  military  power,  where  the  rights  of  the  citizen 
are  concerned,  shall  never  be  pushed  beyond  what  the  exigency 
requires.'  Without  questioning  at  all  the  original  validity  of  the 
order  imposing  duties  upon  goods  imported  into  Porto  Rico  from 
foreign  countries,  we  think  the  proper  construction  of  that  order 
is  that  it  ceased  to  apply  to  goods  imported  from  the  United  States 
from  the  moment  the  United  States  ceased  to  be  a  foreign  country 
with  respect  to  Porto  Rico,  and  that,  until  Congress  otherwise  con- 
stitutionally directed,  such  merchandise  was  entitled  to  free 
entry.*' 

The  same  four  justices  dissented  in  the  Pooler  case  that  had 
dissented  in  the  Pe  Lima  case.     The  dissent,  however,  was  not 
20 


402  United  States  Constitutional  Law. 

with  reference  to  the  validity  of  the  duties  levied  prior  to  the 
ratification  of  the  treaty  of  peace,  but  only  with  reference  to  those 
exacted  after  that  date.  These,  the  dissentient  judges  held  to 
have  been  validly  levied.  After  summarizing  their  arguments  in 
the  De  Lima  case,  the  dissenting  opinion  declares  that,  inasmuch 
as  the  court  had  just  decided  in  Downes  v.  Bidwell0  that,  despite 
the  treaty  of  cession,  Porto  Rico  had  remained  in  a  position  where 
Congress  could  impose  a  tariff  duty  on  goods  coming  from  that 
island  into  the  United  States,  it  should  not  be  held  that  that 
island  ceased  to  be  "  foreign  "  within,  at  least,  the  meaning  of 
the  tariff  laws.  u  The  command  in  tariff  laws,"  reads  the  opinion, 
"  that  import  duties  should  be  collected  on  all  merchandise  com- 
ing from  '  foreign  countries,'  is  but  a  provision  that  they  are  to 
be  levied  on  merchandise  arriving  from  countries  which  are  not 
a  part  of  the  United  States,  within  the  meaning  of  the  tariff  laws, 
and  which  are  hence  subject  to  such  duties.  It  must  follow  tiiat, 
as  long  as  a  locality  is  in  a  position  where  it  is  subject  to  the 
power  of  Congress  to  levy  an  import  tariff  duty  on  merchandise 
coming  from  that  country  into  the  United  States,  such  country 
must  be  a  foreign  country  within  the  meaning  of  the  tariff  laws." 
In  the  case  The  Diamond  Rings,10  decided  in  1901,  the  court 
applied  the  doctrine  of  De  Lima  v.  Bidwell  in  fixing  the  status 
of  the  Philippine  Islands  subsequent  to  the  treaty  of  cession.  The 
fact  that  resistance  on  the  part  of  the  natives  to  the  control  of 
the  United  States  continued  to  be  made,  was  held  to  be  without 
weight.11 

9  181  U.  S.  244;  21  Sup.  Ct.  Eep.  770;  45  L.  ed.  10S8. 

10  183  U.  S.  176;  22  Sup.  Ct.  Rep.  59;  46  L.  ed.  138. 

u  "  The  Philippines,  like  Porto  Rico,  became,  by  virtue  of  the  treaty,  ceded 
conquered  territory,  or  territory  ceded  by  way  of  indemnity.  The  territory 
ceased  to  be  situated  as  Castine  was  when  occupied  by  the  British  forces  in 
the  war  of  1812,  or  as  Tampico  was  when  occupied  by  the  troops  of  the 
United  States  during  the  Mexican  war,  '  cases  of  temporary  possession  of 
territory  by  lawful  and  regular  governments  at  war  with  the  country  of  which 
the  territory  so  possessed  was  a  part.'  Thorington  v.  Smith,  8  Wall.  1 ;  19 
L.  ed.  361.  The  Philippines  were  not  simply  occupied,  but  acquired,  and 
having  been  granted  and  delivered  to  the  United  States,  by  their  former 
master,  were  no  longer  under  the  sovereignty  of  any  foreign  nation. 
The  sovereignty  of  Spain  over  the  Philippines  and  possession  under  claim  of 


The  Axxexatiox  of  Territory  by  Treaty.  403 

§  172.  Duties  of  President  Prior  to  Congressional  Action. 

The  absolute  power  of  Congress  to  determine  the  political  or 
governmental  rights  in  annexed  territories  constitutionally  at- 
taches from  the  moment  that  they  become  subject  to  the  sover- 
eignty of  the  United  States.  Until  Congress  exercises  this  right, 
however,  and  provides  them  with  governments  and  laws,  they 
remain  under  the  control  of  the  federal  executive.  This  duty 
devolves  upon  the  President  as  a  result  from  his  general  obliga- 
tion to  see  that  the  authority  and  peace  of  the  United  States  are 
everywhere  maintained  througliout  its  territorial  limits.  Thus, 
after  the  treaty  of  peace  with  Spain  in  1899,  Porto  Rico  remained 
under  the  control  of  the  President  until  by  the  act  of  April  12, 
1900,  known  as  the  "  Poraker  Act,"  Congress  provided  a  govern- 
ment for  that  island.  So  also  it  was  by  an  exercise  of  the  same 
authority  that  the  President,  after  the  same  treaty  of  cession, 
appointed  commissions  for  the  government  of  the  Philippine 
Islands. 

On  March  2,  1901,  Congress  enacted12  that  "All  military,  civil, 
and  judicial  powers  necessary  to  govern  the  Philippine  Islands 
.  .  .  shall,  until  otherwise  provided  by  Congtess,  be  vested,  in 
such  person  or  persons  and  shall  be  exercised  in  such  manner  as 
the  President  of  the  United  States  shall  direct  for  the  establish- 
ment of  civil  government  and  for  the  maintaining  and  protecting 
the  inhabitants  of  said  islands  in  the  free  enjoyment  of  their 

title  had  existed  for  a  long  series  of  years  prior  to  the  war  with  the  United 
States.  The  fact  that  there  were  insurrections  against  her,  or  that  uncivilized 
trihes  may  have  defied  her  will,  did  not  affect  the  validity  of  her  title.  •  She 
granted  the  islands  to  the  United  States,  and  the  grantee  in  accepting  them 
took  nothing  less  than  the  whole  grant.  If  those  in  insurrection  against 
Spain  continued  in  insurrection  against  the  United  States,  the  legal  title  and 
possession  of  the  latter  remained  unaffected.  We  do  not  understand  that  it  is 
claimed  that  in  carrying  on  the  pending  hostilities  the  government  is  seeking 
to  subjugate  the  people  of  a  foreign  country,  but  on  the  contrary,  that  it  is 
preserving  order  and  suppressing  insurrection  in  the  territory  of  the  United 
States.  It  follows  that  the  possession  of  the  United  States  is  adequate  pos- 
session under  legal  title,  and  this  cannot  be  asserted  for  one  purpose  and 
denied  for  another.     We  dismiss  the  suggested  distinction  as  untenable." 

12  This  was  as  an  amendment  to  the  act  making  appropriation  for  the  sup- 
port of  the  army  for  the  fiscal  year  ending  June  30,  1902. 


404  United  States  Constitutional  Law. 

liberty,  property,  and  religion.*'  This  act  changed  the  basis  of 
the  Philippine  government  from  a  presidential  to  a  congressional 
one,  but  did  not  change  its  form,  the  President  being  given  by 
Congress  practically  the  same  powers  that  before  that  time  he 
had  exercised  by  virtue  of  his  position  as  Chief  Executive. 

By  the  Act  of  July  1,  1902,  entitled  "  an  act  temporarily  to 
provide  for  the  administration  of  the  affairs  of  civil  government 
in  the  Philippine  Islands,  and  for  other  purposes,"  Congress  not 
only  approved  and  ratified  the  previous  acts  of  the  Philippine 
Commission,  but  went  on  to  define  the  general  lines  of  action 
that  body  should  take,  especially  with,  regard  to  the  introduction 
of  local  self-government  as  fast  as  circumstances  should  warrant. 

The  constitutional  source  of  the  power  of  the  United  States  to 
establish,  and  maintain  governments  over  territories  not  annexed 
to  itself  but  in  the  possession  of  its  military  forces  is  derived 
both  from  the  expressed  power  given  it  to  declare  and  wage  war, 
and  from  the  fact  of  its  exclusive  authority  in  all  that  relates 
to  international  affairs,  which  fact,  as  we  have  seen,  properly 
implies  tiie  right,  in  the  absence  of  express  prohibitions,  to  exer- 
cise all  the  power*  possessed  by  sovereign  States  generally. 

From  this  same  source  was  derived  the  power  of  the  United 
States  to  administer  Cuba,  and  to  establish  consular  courts  in 
oriental  countries.13 

13  See  chapter  XXXV. 


CHAPTER  XXIX. 

THE    DISTINCTION    BETWEEN    INCORPORATED    AND    UNINCORPO- 
RATED TERRITORIES. 

§  173.  Limitations  Upon  Powers  of  Congress. 

The  Constitution  of  the  United  States  contains  a  number  of 
express  limitations  upon  the  federal  legislative  power.  In  addi- 
tion to  those  contained  in  the  first  ten  amendments  relative  to 
freedom  of  religion,  speech,  and  press,  the  quartering  of  troops, 
the  right  of  the  people  to  assemble,  to  petition,  to  keep  and  bear 
arms,  to  be  secure  against  unreasonable  searches  and  seizures,  to 
presentment  or  indictment  by  jury,  to  speedy  trial,  to  juries  in 
civil  suits,  to  immunity  from  excessive  bail  and  fines  and  cruel 
and  unusual  punishments,  etc.,  it  is  elsewhere  provided  in  the 
Constitution  that  all  duties,  imposts,  and  excises  shall  be  uniform 
throughout  the  United  States,  that  the  writ  of  habeas  corpus  shall 
not  be  suspended,  except  under  certain  specified  circumstances, 
that  no  bill  of  attainder  or  ex  post  facto  law  shall  be  passed,  no 
capitation  or  other  direct  tax  laid  except  in  proportion  to  popula- 
tion, no  duty  laid  upon  goods  exported  from  a  State,  no  com- 
mercial preferences  given  to  the  ports  of  one  State  over  those  of 
another,  no  money  drawn  from  the  treasury  but  in  consequence 
of  an  appropriation  made  by  law,  no  title  of  nobility  .granted,  etc 
The  Thirteenth  Amendment  also  declares  that  "  neither  slavery 
nor  involuntary  servitude,  except  as  punishment  for  crime  whereof 
the  party  shall  have  been  duly  convicted,  shall  exist  within  the 
United  States,  or  any  place  subject  to  their  jurisdiction." 

When  legislating  for  the  States  or  for  their  inhabitants  these 
limitations  have  of  course  to  be  observed.  The  question  whether 
the  same  is  true  when  Congress  is  legislating  for  the  territories 
and  their  populations  has  now  to.be  examined. 

In  the  preceding  chapters  we  have  learned  the  sources  whence 
is  derived  the  power  of  Congress  and  of  the  President  to  govern 
annexed  Territories.    "We  have  learned  that  by  mere  military  oc- 

[405] 


406  United  States  Constitutional  Law. 

cupation  a  territory,  though  for  the  time  being  subject  to  the 
de  facto  control  of  the  President  as  Commander-in-Chief  of  the 
army  and  navy,  is  not  annexed  to  the  United  States,  that  is,  does 
not  become  permanently  subject  de  jure  as  well  as  de  facto  to  its 
sovereignty.  Only  by  treaty,  or  by  statute,  or  by  jointjesolution 
of  Congress,  may  this  annexation  be  effected. 

§  174.  Possible  Status  of  Territories  after  Annexation. 

When  thus  annexed,  however,  a  district  may,  according  to  the 
recent  "  Insular  Cases,"  find  itself,  or  by  subsequent  statute  be 
placed,  in  any  one  of  the  following  categories. 

1.  A  State  of  the  Union. 

2.  A  "  Territory  "  incorporated  into  the  Union.  This  Terri- 
tory may  be  either  "  unorganized,"  as  for  example  is  Alaska,  or 
a  organized,"  examples  of  which  are  at  present  Xew  Mexico, 
Arizona  and  Hawaii. 

3.  A  Territory  appurtenant  to,  that  is,  subject  to  the  sover- 
eignty of  the  United  States,  but  not  "  incorporated,"  constitu- 
tionally speaking,  into  the  Union  of  States  and  Territories  for  the 
benefit  and  protection  of  whose  inhabitants  the  Constitution  was 
adopted. 

§  175.  Unincorporated  Territory. 

Such  "  appurtenant,"  dependent  or  unincorporated  territory  is, 
of  course,  from  the  international  point  of  view  a  part  of  the 
United  States,1  but  is  not,  as  we  shall  see,  a  part  thereof  in  the 

1  This  international  use  of  the  term  United  States  is  considered  in  the  case 
of  De  Geofroy  v.  Riggs  (133  U.  S.  258;  10  Sup.  Ct.  Rep.  295;  33  L.  ed.  642), 
in  which  the  question  involved  was  whether  the  terms  of  a  treaty  giv- 
ing to  citizens  of  France  the  right  to  inherit  an  interest  in  real  estate  in 
"  States  of  the  Union,"  were  applicable  to  the  District  of  Columbia  or  only 
to  the  States  of  the  Union.  The  use  of  the  phrase  "  States  of  the  Union  " 
would  upon  its  face  indicate  that  only  the  States  and  not  the  extra-State 
areas  were  concerned,  yet  the  court  held  that  the  treaty  was  to  be  construed 
as  generally  applicable.  In  its  opinion  the  court  said:  "This  article  is  not 
happily  drawn.  It  leaves  in  doubt  what  is  meant  by  "  States  of  the  Union." 
Ordinarily  these  terms  would  be  held  to  apply  to  those  political  communities 
exercising  various  attributes  of  sovereignty  which  compose  the  United  States, 
as  distinguished  from  the  organized  municipalities  known  as  Territories  and 


Incorporated  and  Unincorporated  Territories.      407 

stricter  constitutional  sense  in  which  the  term  is  used  in  the  Con- 
stitution with  reference  to  certain  limitations  which  that  instru- 
ment lays  upon  the  legislative  powers  of  Congress. 

§  176.  Distinction  between  Incorporated  and  Unincorporated 
Territories. 

With  respect  to  the  form  of  government  that  may  be  established 
and  maintained  by  Congress  over  the  Territories,  there  is  no  dis- 
tinction between  an  incorporated  and  an  unincorporated  Terri- 
tory. In  either  case  the  congressional  authority  is  absolute.  With 
respect,  however,  to  the  civil  or  private  rights  of  the  inhabitants 
of  the  Territories,  the  distinction  is  very  important.  For  il*  it  be 
that  a  Territory  is  merely  appurtenant  to,  but  not  u  incorporated  " 
into  the  United  States,  Congress  in  its  legislation  regarding  it  is 
bound  by  but  few  of  the  limitations  which  apply  in  the  case  of 
incorporated  Territories,  whether  organized  or  unorganized. 

This  distinction  between  incorporated  and  unincorporated  terri- 
tory is  one  that  was  not  clearly  made  until  the  decision  of  the 

the  District  of  Columbia.  And  yet  separate  communities,  with  an  independent 
local  government,  are  often  described  as  States,  though  the  extent  of  their 
political  sovereignty  be  limited  by  relations  to  a  more  general  government  or 
to  other  countries.  (Halleck  on  Int.  Law,  chap.  Ill,  §§  5,  6,  7.)  The  term 
is  used  in  general  jurisprudence  and  by  writers  on  public  law  as  denoting 
organized  political  societies  with  an  established  government.  Within  this 
definition  the  District  of  Columbia,  under  the  government  of  the  United 
States,  is  as  much  a  State  as  any  of  those  political  communities  which  com- 
pose the  United  States.  Were  there  no  other  territory  under  the  government 
of  the  United  States,  it  would  not  be  questioned  that  the  District  of  Columbia 
would  be  a  State  within  the  meaning  of .  international  law;  and  it  is  not 
perceived  that  it  is  any  less  a  State  within  that  meaning  because  other  States 
and  other  territory  are  also  under  the  same  government." 

After  referring  to  the  case  of  De  Geofroy  v.  Riggs,  Justice  Brown  in  the 
individual  opinion  which  he  rendered  in  Downes  v.  Bidwell  (182  U.  S.  244; 
21  Sup.  Ct.  Rep.  770;  43  L.  ed.  1088),  observes:  "In  dealing  with  foreign 
sovereignties,  the  term  '  United  States '  has  a  broader  meaning  than  when 
used  in  the  Constitution,  and  includes  all  territories  subject  to  the  jurisdic- 
tion of  the  Federal  Government,  wherever  located.  In  its  treaties  and  con- 
ventions with  foreign  nations,  this  government  is  a  unit.  This  is  so,  not 
because  the  Territories  comprise  a  part  of  the  government  established  by  the 
people  of  the  States  in  their  Constitution,  but  because  the  Federal  Govern- 
ment is  the  only  authorized  organ  of  the  Territories,  as  well  as  of  the 
States  in  their  foreign  relations." 


408  Exited  States  Constitutional  Law. 

Insular  Cases  in  1901.  Indeed,  prior  to  that  time,  there  had 
been  a  number  of  decisions  by  the  Supreme  Court  which  indicated 
that  such  a  distinction  did  not,  and  could  not,  exist  according  to  the 
Constitutional  Law  of  the  L'nited  States.  There  were,  however,  on 
the  other  hand,  not  a  few  legislative  and  administrative  precedents 
which  supported  such  a  doctrine;  and  by  rigorously  confining 
the  contrary  decisions  of  the  Supreme  Court  to  the  facts  of  the 
cases  in  which  they  were  rendered,  it  was  found  possible  to  escape 
from  their  control,  and  to  hold  that  the  term  u  United  States," 
as  used  in  at  least  some  of  the  clauses  of  the  Constitution,  does 
not,  and  was  not  intended  to,  include  all  districts  subject  to  the 
sovereignty  of  the  United  States;  and  that  as  to  such  areas  not 
within  the  limits  of  the  "  United  States,"  in  this  strict  constitu- 
tional sense,  Congress,  in  the  exercise  of  its  legislative  powers, 
is  not  subject  to  the  limitations  which  rest  upon  it  when  dealing 
with  Territories  which  are  included  in  the  United  States. 

A  review  of  the  decisions  of  the  Supreme  Court  rendered 
prior  to  the  Insular  Cases,  shows  that,  from  the  first,  the  doc- 
trine was  held  by  the  court  that  Congress  when  legislating  upon 
the  civil  rights  of  inhabitants  of  the  Territories  is  governed  by 
all  those  express  and  implied  limitations  which  rest  upon  it  when 
dealing  with  the  same  subjects  within  the  States.2  The  only 
departures  from  this  doctrine,  if  departures  they  be,  were:  (1) 
The  remark  thrown  out  by  Justice  Bradley  in  the  Alormon  Church 
case3  that  "  Doubtless  Congress,  in  legislating  for  the  Territories 
would  be  subject  to  those  fundamental  limitations  in  favor  of  per- 
sonal rights  which   are  formulated  in  the  Constitution   and  its 

2  See*  Loughborough  v.  Blake,  5  Wh.  317;  5  L.  ed.  98;  Am.  Ins.  Co.  v. 
Canter,  1  Pet.  511;  7  L.  ed.  242;  Webster  v.  Reid,  11  How.  437;  13  L.  ed. 
761;  Scott  T.  Sandford,  19  How.  393;  15  L.  ed.  691;  Reynolds  v.  U.  S.,  98 
U.  S.  145;  25  L.  ed.  244;  Nat.  Bank  v.  Yankton,  101  U.  S.  129;  25  L.  ed. 
1046;  Murphy  v.  Ramsay,  114  U.  S.  15;  5  Sup!  Ct.  Rop.  747;  29  L.  ed.  47; 
Callan  v.  Wilson,  127  U.  S.  540;  8  Sup.  Ct.  Rep.  1301;  32  L.  ed.  223; 
Mormon  Church  t.  U.  S.,  136  U.  S.  1 ;  10  Sup.  Ct.  Rep.  792;  34  L.  ed. 
478;  Am.  Pub.  Co.  v.  Fisher,  166  U.  S.  464:  .17  Sup.  Ct.  Rep.  618;  41 
L.  ed.  1079;   Springville  v.  Thomas,  166  IT.  S.  707;    17  Sup.  Ct.  Rep.   717; 

41  L.  ed.   1172;  Thompson  v.  Utah,   170  U.  S.   343;    18  Sup.  Ct.  Rep.  620; 

42  L.  ed.  1061. 

3  136  U.  S.  1;  10  Sup.  Ct.  Rep.  792;  34  L.  ed.  478. 


I.\(  I'Kl'nRATED    am    UNINCORPORATED    TERRITORIES. 

amendments;  but  these  limitations  would  exist  rather  by  infer- 
ence and  tiie  general  spirit  of  the  Constitution,  from  which  Con- 
gress derives  all  its  powers,  than  by  any  express  and  distinct 
application  of  its  provisions;"  and  (2)  the  quotation  of  this 
observation  by  Justice  Brewer  in  American  Publishing  Co.  v. 
Fisher4  and  the  statement  that  "  whether  the  Seventh  Amendment 
of  the  Constitution  of  the  United  States  .  .  .  operates  ex 
proprio  vigore  to  invalidate  this  territorial  statute  may  be  a  mat- 
ter of  dispute."  5 

Opposed,  however,  to  this  great  weight  of  judicial  opinion, 
there  had  been  from  the  beginning,  as  has  been  said,  a  line  of 
administrative  and  legislative  precedents  which  tended  to  show  a 
prevailing  opinion  that  the  Constitution  with  its  limiting  clauses 
does  not  immediately  extend,  ex  proprio  vigore,  over  all  annexed 
territories,  but  over  only  such  as  have  been  expressly  brought 
within  its  sphere  of  application  by  being  "  incorporated  "  in  the 
I'nion.  And,  based  upon  the  fact  that  this  incorporation  had 
certainly  taken  place  with  reference  to  the  Territories  concerned 
in  the  various  Supreme  Court  decisions  rendered  prior  to  the 
Insular  Cases,  an  argument  was  furnished  for  holding  them  not 
controlling  in  the  Insular  Cases  which  were  concerned  with  dis- 
tricts that  had  not  been  so  incorporated.  These  legislative  and 
administrative  precedents  it  does  not  fall  within  the  province  of 
this  treatL-e  to  review.  It  is  sufficient  to  say  that  in  not  a  few 
instances  various  of  the  constitutional  limitations  were  not  applied 
in  practice  in  the  Territories,  and  that  by  specific  legislative  pro- 
visions these  limitations  were,  from  time  to  time,  extended  over 
the  several  Territories  acquired  by  the  United  States,  thus  indi- 
cating on  the  part  of  Congress  at  least  a  doubt  as  to  whether  the 
constitutional  provisions  extended  ex  proprio  vigore  over  the 
Territories. 

Finally,  it  is  to  be  observed,  that,  in  the  Constitution  itself, 
there  occur  expressions  which  furnish  possible  ground  for  holding 

<166  U.  S.  464;  17  Sup.  Ct.  Rep.  618;  41  L.  ed.  1079. 
6  The  case  of  In  re  Ross   (140  U.  S.  453;  11  Sup.  Ct.  Rep.  897;  35  L   ed. 
5S1 ) ,  properly  construed,  did  not  indicate  a  departure  from  the  rule. 


410  United  States  Constitutional  Law. 

that  some  at  least  of  its  limitations  were  not  intended  to  operate 
over  all  Territories  that  might  come  under  the  jurisdiction  of, 
but  remain  merely  appurtenant  to,  the  United  States.  Thus  the 
Thirteenth  Amendment  declares  that  slavery  and  involuntary 
servitude  shall  not  exist  "  within  the  United  States,  or  any  place 
subject  to  their  jurisdiction."  Thus  is  plainly  indicated  the 
possibility  that  there  may  be  districts  subject  to  but  not  within 
the  United  States.  And  this  point  is  emphasized  when  it  is 
remembered  that  this  Amendment  was  drafted  and  adopted  by 
substantially  the  same  men  who  drafted  and  adopted  the  Four- 
teenth and  Fifteenth  Amendments  in  which  this  qualifying  phrase 
does  not  appear.  Again,  the  Sixth  Amendment  provides  that  in 
criminal  trials  the  accused  shall  be  tried  by  an  impartial  jury 
"  of  the  State  and  district  wherein  the  crime  shall  have  been 
committed."  6 

6  In  United  States  v.  Dawson  (15  How.  467;  14  L.  ed.  775),  the  opinion 
declares:  "But  it  will  be  seen  from  the  words  of  this  amendment  that  it 
applies  only  to  the  case  of  offenses  committed  within  the  limits  of  a  State. 
.  The  language  of  the  Amendment  is  too  particular  and  specific  to 
leave  any  doubt  about  it."  In  Cook  v.  United  States  (138  U.  S.  157;  11  Sup. 
Ct.  Hep.  268;  34  L.  ed.  906),  the  court  say:  "That  amendment  has  reference 
only  to  offenses  against  the  United  States  committed  within  a  State"  (citing 
United  States  v.  Dawson).  Yet,  as  we  have  seen  in  Reynolds  v.  United  States 
(98  U.  S.  145;  25  L.  ed.  244),  the  court  declared  specifically  that  the  Amend- 
ment was  applicable  to  the  Territory  of  Utah. 


CHAPTER  XXX. 

THE   INSULAR  CASES. 
§  177.  Downes  v.  Bidwell. 

As  a  result  of  the  Spanish-American  War  the  United  States 
came  into  possession  of  territories  over  which,  because  of  their 
location,  their  economic  and  industrial  status,  and  especially  the 
character  of  their  populations,  it  was  deemed  expedient  to  give  to 
the  Executive  or  to  Congress  the  freest  possible  discretion  with 
reference  not  only  to  the  manner  in  which  they  should  be  gov- 
erned, but  to  the  civil  rights  that  should  be  granted  their  inhabi- 
tants. The  question  whether  in  dealing  with  these  new  insular 
possessions,  Congress  snould  be  held  subject  to  all  those  constitu- 
tional limitations  which  apply  when  dealing  with  civil  rights  in 
the  States  or  in  the  then  existing  Territories,  thus  became  a  most 
important  one. 

The  form  in  which  this  question  arose  for  judicial  determina- 
tion was  as  to  the  constitutionality  of  that  clause  of  the  Foraker 
Act  establishing  civil  "  congressional "  government  in  Porto 
Rico,  which  provided  a  scale  of  customs  duties  to  be  paid  upon 
goods  brought  into  the  ports  of  the  United  States  from  the 
island.  This  necessarily  involved  an  answer  to  the  question 
whether  the  provision  of  the  Constitution  that  "  all  duties,  im- 
posts and  excises  shall  be  uniform  throughout  the  United  States  *' 
applied  ex  proprio  vigore  to  Porto  Rico,  or  whether,  having  never 
been  formally  "  incorporated "  by  Congress  into  the  United 
States  either  expressly  or  by  implication,  the  island  was  not  a 
part  of  the  "  United  States "  within  the  meaning  of  the  term 
as  used  in  the  constitutional  clause  just  quoted. 

In  Downes  v.  Bidwell1  five  of  the  nine  justices  of  the  Supreme 
Court  concurred  in  holding  that,  though  by  the  treaty  of  cession 
the  island  of  Porto  Rico  came  under  the  sovereignty  of  the  United 
States,  and  when  viewed  from  the  standpoint  of  all  other  nations 
became  a  part  of  the  United  States,  it  did  not,  when  looked  at 

1 182  U.  S.  244;  21  Sup.  Ct.  Rep.  770;  45  L.  ed.  1088. 

[411] 


412  United  States  Constitutional  Law. 

from  the  viewpoint  of  its  own  public  law,  become  a  part  of  the 
"  United  States  "  as  that  term  is  used  in  the  Constitution. 
^v  Four  of  these  five  justices  were  able  to  reach  this  conclusion: 
/)  First,  by  making  a  sharp  distinction  between  '*  incorporated  " 
and  "  unincorporated^"  Territories  f'Second,  by  holding  that  the 
treaty-making  power  though  able  to  annex  Territories  lo  the 
United  States,  that  is,  bring  them  under  its  sovereignty  inter- 
nationally speaking,  is  not  competent  to  incorporate  such  areas  in 
the  United  States,  but  that  for  this  purpose  the  express  or  implied 
consent  of  Congress  is  necessary;  and  Third,  that  Congress  in 
legislating  for  unincorporated  Territories  is  not  subject  to  many 
of  the  limitations  which  apply  when  it  is  legislating  for  the  States 
and  incorporated  Territories. 

It  will  be  observed  that  so  far  as  the  general  limitations  upon 
the  legislative  powers  of  Congress  are  concerned,  these  four  jus- 
tices place  the  States  and  the  incorporated  Territories  in  the 
same  class.  Only  the  unincorporated  Territories  are  by  them 
excluded  from  the  protection  of  such  limitations  as,  for  example, 
that  federal  tax  laws  shall  be  uniform  throughout  the  United 
States.  The  fifth  justice,  Brown,  who  concurred  with  these  four, 
does  not,  as  we  shall  see,  make  any  distinction  between  incorpo- 
rated and  unincorporated  Territories,  but  excludes  them  all  from 
the  term  "  United  States,"  and  from  the  protection  of  all  but  the 
most  fundamental  of  the  constitutional  limitations  upon  the  power 
of  Congress.  The  constitutional  rights  which  these  limitations 
create,  he  asserts,  do  not  belong  to  the  citizens  of  any  Territories 
until  by  act  of  Congress  they  have  been  extended  to  them.  Thus. 
while  the  four  justices  divide  the  domains  of  the  United  States 
into  the  three  classes  of  States,  Incorporated  Territories,  and 
Unincorporated  Territories;  Justice  Brown  recognizes  only  two 
categories,  States  and  Territories. 

The  reasoning  of  the  four  justices  was  as  follows:2    At  the 
.  beginning  very  proper  care  is  taken  to  point  out  that  the  ques- 

2  These  were  the  same  justices  who  dissented  from  the  judgment  of  the 
court,  in  De  Lima  v.  Bidwell  that  by  the  treaty  of  annexation  Porto  Rico  at 
once  ceased  to  be  "  foreign  territory  "  within  the  meaning  of  the  federal  tariff 
laws. 


The  Ixsn.AR  Cases.  41" 

tion  is  not  as  to  whether  the  Constitution  is  to  control  in  the 
premises,  but  as  to  which  of  its  provisions  are  applicable.  "  Every 
f unction  of  the  government  being  .  .  .  derived  from  the  (  (in- 
stitution." says  the  opinion,  "  it  follows  that  that  instrument  is 
everywhere  and  at  all  times  potential  in  so  far  as  its  provisions 
are  applicable.  Hence  it  is  that  whenever  a  power  is  given  hv 
the  Constitution,  and  there  is  a  limitation  imposed  on  the  author- 
ity, such  restriction  operates  upon  and  confines  every  action  on 
the  subject  within  its  constitutional  limits.  As  Congress  in 
governing  the  Territories  is  subject  to  the  Constitution,  it  results 
that  all  the  limitations  of  the  Constitution  which  are  applicable 
to  Congress  in  exercising  this  authority  necessarily  limit  its 
power  on  this  subject,  It  follows,  also,  that  every -provision  of 
the  Constitution  which  is  applicable  to  the  Territories  is  also  con- 
trolling therein.  ...  In  the  case  of  the  Territories,  as  in 
every  other  instance,  when  a  provision  of  the  Constitution  is 
invoked,  the  question  which  arises  is,  not  whether  the  Constitu- 
tion is  operative,  for  that  is  self-evident,  but  whether  the  provi- 
sion relied  on  is  applicable.  .  .  .  And  the  determination  of 
what  particular  provision  of  the  Constitution  is  applicable,  gen- 
erally speaking,  in  all  cases,  involves  an  inquiry  into  the  situation 
of  the  territory  and  its  relations  to- the  United  States." 

Some  of  the  limitations  created  by  the  Constitution,  the  opinion 
recognizes,  are  of  such  "  general  and  fundamental  character  or 
so  al>Hi]u;<'ly  laid  down"  as  to  restrain  Congress  in  whatever 
capacity  it  may  bo  acting  —  whether  as  a  general  legislature  for 
all  the  regions  and  peoples  subject  to  United  States  sovereignty, 
or  only  as  a  local  legislature  for  the  Territories.  ''Albeit,"  the 
opinion  declare--.  "  as  a  general  rule,  the  status  of  a  particular 
Territory  has  to  be  taken  in  view  when  the  applicability  of  any 
provision  of  the  Constitution  is  qncsiiomd.  it  does  not  follow, 
when  tin-  ( 'oii-titution  has  absolutely  withheld  from  the  govern- 
ment all  power  on  a  given  subject,  that  such  an  inquiry  is  neces- 
-arv.  rndoiihtedly  there  are  general  prohibitions  in  the  Con- 
stitution in  favor  of  the  liberty  and  property  of  the  citizen,  which 
are  not  mere  regulations  as  to  form  and  manner  in  which  a  con- 


414  United  States  Constitutional  Law; 

ceded  power  may  be  exercised,  but  which  are  absolute  denials  of 
all  authority  under  any  circumstances  or  conditions  to  do  par- 
ticular acts.  In  the  nature  of  things,  limitations  of  this  character 
cannot  under  any  circumstances  be  transcended,  because  of  the 
complete  absence  of  power."  The  opinion  does  not  attempt,  how- 
ever, to  enumerate  any  of  those  absolute  prohibitions  of  power, 
though  it  does  later  describe  them  as  those  made  "  in  favor  of 
human  liberty." 

With  reference  to  the  special  point  at  issue,  the  opinion  says: 
"  There  is  in  reason,  then,  no  room  in  this  case  to  contend  that 
Congress  can  destroy  the  liberties  of  the  people  of  Porto  Rico  by 
exercising  in  their  regard  powers  against  freedom  and  justice 
which  the  Constitution  has  absolutely  denied.  There  can  also 
be  no  controversy  as  to  the  right  of  Congress  to  locally  govern 
the  island  of  Porto  Rico  as  its  wisdom  may  decide,  and  in  so 
doing  to  accord  only  such  degree  of  representative  government 
as  may  be  determined  on  by  that  body.  There  can  also  be  no  con- 
tention as  to  the  authority  of  Congress  to  levy  such  local  taxes 
in  Porto  Rico  as  it  may  choose,  even  although  the  amount  of  the 
local  burden  so  levied  be  manifold  more  onerous  than  is  the  duty 
with  which  this  case  is  concerned.  But  as  the  duty  in  question 
was  not  a  local  tax,  since  it  was  levied  in  the  United  States  on 
goods  coming  from  Porto  Rico,  it  follows  that,  if  that  island  was 
a  part  of  the  United  States,  the  duty  was  repugnant  to  the  Con- 
stitution, since  the  authority  to  levy  an  impost  duty  conferred 
by  the  Constitution  on  Congress  does  not,  as  I  have  conceded, 
include  the  right  to  lay  such  a  burden  on  goods  coming  from  one 
to  another  part  of  the  United  States.  And,  besides,  if  Porto 
Rico  was  a  part  of  the  United  States  the  exaction  was  repugnant 
to  the  uniformity  clause.  The  sole  and  only  issue,  then,  is  not 
whether  Congress  has  taxed  Porto  Rico  without  representation  — 
for,  whether  the  tax  was  local  or  national,  it  could  have  been 
imposed  although  Porto  Rico  had  no  representative  local  govern- 
ment and  was  not  represented  in  Congress  —  but  is  whether  the 
particular  tax  in  question  was  levied  in  such  form  as  to  cause  it 
to  be  repugnant  to  the  Constitution.     This  is  to  be  resolved  by 


The  Insular  Cases.  415 

answering  the  inquiry,  Had  Porto  Rico,  at  the  time  of  the  pas- 
sage of  the  act  in  question,  been  incorporated  into  and  become 
an  integral  part  of  the  United  States  ?  " 

The  opinion  then  examines:  First,  whether  the  United  States 
has  the  constitutional  power  to  acquire  territory  and  hold  it  as 
appurtenant  and  dependent  territory  without  "  incorporating  "  it 
in  itself  in  a  constitutional  sense;  and,  Second,  whether,  if  it  has 
the  power,  it  has  done  so  in  the  case  of  Porto  Rico.3 

The  power  to  acquire  and  hold  territory  in  whatever  constitu- 
tional status  it  sees  fit,  is,  says  the  opinion,  an  inherent  power 
possessed  by  all  sovereign  States  (citing  numerous  international 
law  writers).  This  power  is  possessed  by  the  United  States.  Its 
power  to  acquire  territory  is  conceded.  But,  the  opinion  con- 
tinues :  "  To  concede  to  the  United  States  the  right  to  acquire, 
and  to  strip  it  of  all  power  to  protect  the  birthright  of  its  citizens 
and  to  provide  for  the  well  being  of  the  acquired  territory  by  such 
enactments  as  may  in  view  of  its  condition  be  essential,  is,  in 
effect,  to  say  that  the  United  States  is  helpless  in  the  family  of 
nations,  and  does  not  possess  that  authority  which  has  at  all  times 
been  treated  as  an  incident  of  the  right  to  acquire." 

The  assertion  that  it  is  contrary  to  the  spirit  of  the  Constitu- 
tion to  hold  territories  without  incorporating  them  as  integral 
parts  of  the  United  States  this  opinion  declares  to  be  based  upon 
political  and  not  upon  judicial  considerations,  there  being  no 
particular  provision  of  the  Constitution  upon  the  subject.  "  Con- 
ceding," says  the  opinion,  "  that  the  conception  upon  which  the 
Constitution  proceeds  is  that  no  territory,  as  a  general  rule,  shall 
be  acquired  unless  the  territory  may  reasonably  be  expected  to  be 
worthy  of  statehood,  the  determination  of  when  such  blessing  is 
to  be  bestowed  is  entirely  a  political  question,  and  the  aid  of  the 
judiciary  cannot  be  invoked  to  usurp  political  discretion  in  order 
to  save  the  Constitution  from  imaginary  or  real  dangers."  * 

3  Tie  decision  as  to  Porto  Rico  wouM  of  course  conclude  the  status  of  the 
other  insular  possessions  obtained  in  1S1>9  from  Spain. 

♦  This  would  hardly  seem  to  meet  the  point,  which  is  not  as  to  the  power 
to  hold  districts  for  an  indefinite  length  of  time  in  a  territorial  condition,  but 
as  to  the  power  to  annex  territory  without  "  incorporating  "  it  in  the  United 
States. 


416  United  States  Coxstitutioxal  Law. 

Xot  only,  then,  has  the  United  States  the  power  to  acquire  and 
hold  "  appurtenant "  territory,  but,  the  opinion  continues,  this  is 
the  only  status  which  may  be  given  to  annexed  territory  by  the 
treaty-making  power.  For  incorporation  the  consent  of  Congress 
is  required.  "  It  seems,"  the  opinion  continues,  "  impossible  to 
conceive  that  the  treaty-making  power  by  a  mere  cession  can 
incorporate  an  alien  people  into  the  United  States  without  the 
express  or  implied  approval  of  Congress.  And  from  this  it  must 
follow  that  there  can  be  no  foundation  for  the  assertion  that, 
where  the  treaty-making  power  has  inserted  conditions  which 
preclude  incorporation  until  Congress  has  acted  in  respect  thereto, 
such  conditions  are  void  and  incorporation  results  in  spite  thereof. 
If  the  treaty-making  power  can  absolutely,  without  the  consent 
of  Congress,  incorporate  territory,  and  if  that  power  may  not 
insert  conditions  against  incorporation,  it  must  follow  that  the 
treaty-making  power  is  endowed  by  the  Constitution  with  the 
most  unlimited  right,  susceptible  of  destroying  every  other  pro- 
vision of  the  Constitution ;  that  is,  it  may  wreck  our  institutions. 
If  the  proposition  be  true,  then  millions  of  inhabitants  of  alien 
territory,  if  acquired  by  treaty,  can,  without  the  desire  or  consent 
of  the  people  of  the  United  States,  speaking  through  Congress, 
be  immediately  and  irrevocably  incorporated  into  the  United 
States,  and  the  whole  structure  of  the  government  be  overthrown. 
While  thus  aggrandizing  the  treaty-making  power  on  the  one 
hand,  the  construction  at  the  same  time  minimizes  it  on  the  other, 
in  that  it  strips  that  authority  of  any  right  to  acquire  territory 
upon  any  condition  which  would  guard  the  people  of  the  United 
States  from  the  evil  of  immediate  incorporation.  The  treaty- 
making  power,  then,  under  this  contention,  instead  of  having  the 
symmetrical  functions  which  belong  to  it  from  its  very  nature, 
becomes  distorted,  vested  with  the  right  to  destroy  upon  the  one 
hand,  and  deprived  of  all  power  to  protect  the  government  on  the 
other. 

Though  declared  to  be  a  political  question,  the  necessity  of  such  a  power 
is  argued  at  length  by  these  justices. 


The   Ixsular  Cases.  417 

And,  looked  at  from  another  point  of  Tiew,  the  effect  of  the 
principle  asserted  is  equally  antagonistic,  not  only  to  the  express 
provisions,  but  to  the  spirit  of  the  Constitution  in  other  respects. 
Thus,  if  it  be  true  that  the  treaty-making  power  has  the  authority 
which  is  asserted,  what  becomes  of  that  branch  of  Congress  which 
is  peculiarly  the  representative  of  the  people  of  the  United  States, 
and  what  is  left  of  the  functions  of  that  body  under  the  Constitu- 
tion '.  For,  although  the  House  of  Representatives  might  be  un- 
willing to  agree  to  the  incorporation  of  alien  races,  it  would  be 
impotent  to  prevent  its  accomplishment,  and  the  express  pro- 
visions conferring  upon  Congress  the  power  to  regulate  commerce, 
the  right  to  raise  revenue, —  bills  for  which,  by  the  Constitution, 
must  originate  in  the  House  of  Representatives, —  and  the  author- 
ity to  prescribe  uniform  naturalization  laws,  would  be  in  effect  set 
at  naught  by  the  treaty-making  power.  And  the  consequent  re- 
sult —  incorporation  —  would  be  beyond  all  future  control  of  or 
remedy  by  the  American  people,  since,  at  once  and  without  hope 
of  redress  or  power  of  change,  incorporation  by  the  treaty  would 
have  been  brought  about.  The  inconsistency  of  the  position  is  at 
once  manifest.  The  basis  of  the  argument  is  that  the  treaty 
must  be  considered  to  have  incorporated,  because  acquisition  pre- 
supposes the  exercise  of  judgment  as  to  fitness  for  immediate  in- 
corporation. But  the  deduction  drawn  is,  although  the  judgment 
exercised  is  against  immediate  incorporation  and  this  result  is 
plainly  expressed,  the  conditions  are  void  because  no  judgment 
against  incorporation  can  be  called  into  play." 

As  is  later  indicated,  however,  where  the  treaty  of  annexation 
provides  for  incorporation,  the  consent  of  Congress  to  such  in- 
corporation may  be  implied  from  legislation  that  recognizes  this 
status  as  having  been  obtained.  But  where  a  treaty  of  cession 
dees  not  expressly  provide  for  incorporation,  and  still  more,  where 
it.  expressly  provides  against  it,  a  more  formal  congressional 
action  would  seem  to  be  necessary. 

The  opinion  then  proceeds  to  maintain  that  at  the  time  the 
Constitution  was  adopted,  the  term  "  United  States  "  designated 
a  definite  territory,  namely,  the  thirteen  original  States  and  the 
27 


418  United  States  Constitutional  Law. 

areas  which  they  had  ceded,  or  had  agreed  to  cede,  to  the  General 
Government,  and  that  the  new  government  with  prescribed  powers 
was  established  for  the  benefit  of  the  citizens  of  this  national  ag- 
gregate of  State  and  Territories.  "  Thus  it  was,  at  the  adoption 
of  the  Constitution,  the  United  States,  as  a  geographical  unit,  and 
as  a  governmental  conception  both  in  the  international  and 
domestic  sense,  consisted  not  only  of  States,  but  also  of  Terri- 
tories, all  the  native  white  inhabitants  being  endowed  with  citi- 
zenship, protected  by  pledges  of  a  common  union,  and,  except  as 
to  political  advantages,  all  enjoying  equal  rights  and  freedom,  and 
safeguarded  by  substantial  guarantees,  all  being  under  the  obli- 
gation to  contribute  their  proportional  share  for  the  liquidation 
of  the  debts  and  future  expenses  of  the  General  Government." 

In  short,  then,  according  to  this  doctrine,  the  Constitution,  from 
the  beginning,  extended  ex  proprio  vigore,  over  the  States  and 
the  extra-State  regions  then  subject  to  the  sovereignty  of  the 
United  States.  In  all  that  concerned  the  form  of  government 
to  be  established  over  them,  the  inhabitants  of  these  territorial, 
extra-State  districts,  were  subject  to  the  discretionary  control  of 
Congress,  but  in  all  else,  in  the  private  rights  of  person  and  prop- 
erty, and  the  protection  of  all  the  limitations  upon  the  federal 
power,  express  or  implied,  they  were  on  a  plane  of  perfect  equality 
with  the  citizens  of  the  States. 

With  reference,  however,  to  territories  acquired  since  1789  the 
doctrine  of  the  opinion  is,  as  has  been  said,  that  they  do  not  by 
annexation  become  ipso  facto  integral  parts  of  the  United  States 
in  this  constitutional  sense  until  Congress  has  incorporated  them 
into  the  Union  as  such. 

In  support  of  this  position  the  court  cite  legislative  action  to 
this  effect  with  reference  to  territory  annexed  since  1787  up  to 
the  time  of  the  treaty  of  1898  with  Spain.  In  each  case,  with 
the  exception  of  this  last  treaty,  the  treaty  of  cession  had  provided 
that  the  territories  ceded  should  be  incorporated  into  the  United 
States,  or,  as  in  the  treaty  of  1867  for  the  purchase  of  Alaska, 
that  the  civilized  inhabitants  should  be  ■"  admitted  to  the  enjoy- 


The  Ixsular  Cases.  419 

ment  of  all  the  rights,  advantages  and  immunities  of  citizens  of 
the  United  States."  5 

If,  the  opinion  asks,  the  effect  of  annexation  were  immediately 
to  incorporate  the  territory  annexed  into  the  United  States, 
what  was  the  need  of  these  express  treaty  provisions?6 

The  opinion  next  goes  on  to  show  that  the  constitutional  doubts 
expressed  by  Jefferson  at  the  time  of  the  acquisition  of  Louisiana 
were  not  as  to  its  annexation,  but  as  to  its  incorporation,  as  pro- 
vided by  the  treaty,  into  the  Union.  By  reference  to  various 
legislative  and  administrative  acts,  the  opinion  shows  the  terri- 
tories subsequently  annexed  to  have  been  either  formally  incor- 

6  The  treaty  for  the  cession  of  Louisiana  to  the  United  States  provided  that: 
"  The  inhabitants  of  the  ceded  territory  shall  be  incorporated  into  the  Union 
of  the  United  States  and  admitted  as  soon  a3  possible  according  to  the  prin- 
ciples of  the  federal  Constitution  to  the  enjoyment  of  all  the  rights,  advan- 
tages, and  immunities  of  the  citizens  of  the  United  States."  (8  U.  S.  Stat,  at 
L.  202.) 

In  the  treaty  with  Spain  whereby  was  confirmed  the  title  of  the  United 
States  to  the  Floridas  the  United  States  agreed  that:  "The  inhabitants  of 
the  territories  .  .  .  shall  be  incorporated  in  the  Union  of  the  United 
States  as  soon  as  it  may  be  consistent  with  the  principles  of  the  federal  Con- 
stitution, and  admitted  to  the  enjoyment  of  all  the  privileges,  rights,  and 
immunities  of  the  citizens  of  the  United  States."     (8  Stat,  at  L.  256.) 

In  the  treaty  with  Mexico  by  which  Mexico  relinquished  its  rights  to  Upper 
California  and  New  Mexico  the  United  States  promised  that:  "The  Mexicans 
who,  in  the  territories  aforesaid,  shall  not  preserve  the  character  of  citizens 
of  the  Mexican  Republic  conformably  with  what  is  stipulated  in  the  preceding 
article,  shall  be  incorporated  in  the  Union  of  the  United  States  and  to  be 
admitted  at  the  proper  time  (to  be  judged  of  by  the  Congress  of  the  United 
States)  to  the  enjoyment  of  all  the  rights  of  citizens  of  the  United  States 
according  to  the  principles  of  the  Constitution."     (9  Stat,  at  L.  930.) 

In  the  treaty  with  Russia  for  the  annexation  of  Alaska  the  United  States 
agreed  that:  "  The  inhabitants  of  the  ceded  territory  .  .  .  shall  be  admitted 
to  tlie  enjoyment  of  all  the  rights,  advantages  and  immunities  of  citizens  of 
the  United  States.-'      (15  Stat,  at  L.  542.) 

6  To  the  author's  mind  this  is  by  no  means  conclusive  argument;  and  for 
two  reasons.  In  the  first  place,  provisions  really  unnecessary  are  often 
Inserted  in  legal  documents  from  abundance  of  caution;  and,  in  the  second 
place,  foreign  countries  are  not  presumed  to  know  the  constitutional  law  of 
foreign  countries,  and,  therefore,  the  peculiar  constitutional  rights  of  the 
inhabitants  of  an  annexed  territory.  It  is,  therefore,  a  general  practice  for 
countries,  when  handing  over  certain  of  their  subjects  to  the  political  control 
of  a  foreign  power,  to  provide  as  far  as  possible  for  the  future  welfare  of  these 
persons  the  control  over  whom  is  thus  abandoned. 


420  United  States  Constitutional  Law. 

porated  or  by  necessary  implication  recognized  "by  Congress  as  in- 
corporated into* the  United  States.  This  being  so,  it  is  argued  that 
the  various  earlier  dicta  of  the  Supreme  Court  relative  to  the 
CB»stirutwm-al  limitations  resting  upon  Congress  when  legislating 
for  the  Territories  are  to  be  interpreted  in  that  light  and  do  not 
cover  the  ease  of  a  Territory  Avhich  has  not  been  incorporated  into 
the  United  States. 

Stumming  np  its  doctrine  upon  this  point,  the  justice  reading 
the  opinion  declares-:  u  It  is,  then,  as  I  think,  indubitably  set- 
tled by  the  principle  of  the  law  of  nations,  by  the  nature  of  the 
government  created  under  the  Constitution,  by  the  express  and 
implied  powers  conferred  upon  that  government  by  the  Constitu- 
tion, by  the  mode  in  which  those  powers  have  been  executed  from 
the  beginning,  and  by  an  nnbroken  line  of  decisions  of  this  court, 
first  announced  by  ^Marshall  and  followed  and  lucidly  expounded 
by  Taneyfthat  the  treaty-making  power  cannot  incorporate  terri- 
tory into  the  United  States  without  the  express  or  implied  assent 
of  Congress,  that  it  may  insert  in  a  treaty  conditions  against  im- 
'  H&ediate  incorporation,  and  that  on  the  other  hand,  when  it  has 
expressed  in  the  treaty  the  conditions  favorable  to  incorporation 
they  will,  if  the  treaty  be  not  repudiated  by  Congress,  have  the 
force  of  the  law  of  the  land,  and  therefore  by  the  fulfilment  of 
srteh  conditions  cause  incorporation  to  result  It  must  follow, 
therefore,  that  where  a  treaty  contains  no  conditions  for  incorpora- 
tion, and,  above  all,  where  it  not  only  has  no  such  conditions,  but 
expressly  provides  to  the  contrary,  that  incorporation  does  not 
arise  until  in  the  wisdom  of  Congress  it  is  deemed  that  the  ac- 
quired Territory  has  reached  that  state  where  it  is  proper  that  it 
sirouid  enter  into  and  form  a  part  of  the  American  family." 

Having  established  this  doctrine,  its  application  to  Porto  Rico 
becomes  a  comparatively  simple  matter.  The  treaty  with  Spain 
in  no  clause  provided  for  incorporation,  but,  upon  the  contrary, 
expressly  provided  that  the  civil  rights  and  political  status  of  the 
Mtive  inhabitants  of  the  territories  should  be  determined  by  Con- 
gress; and  since  annexation.  Congress  had  carefully  refrained 
from  any  expression  of  legislative  will  from  which  incorporation 
might  be  implied. 


/ 

The  Insular  Cases.  421 

••  The  result  of  what  has  been  said/'  say  the  court,  u is  that 
while  in  aii  international  sense  Porto  liico  was  not  a  foreign 
country,  since  it  WW  subject  to  the  sovereignty  of  and  was  owned 
liy  the  United  States,  it  was  foreign  to  the  United  States  La  a 
domestic  sense,  because  the  island  had  not  been  incorporated  into 
the  United  States,  but  was  merely  appurtenant  thereto  as  a  posses- 
sion. As  a  necessary  consequence,  the  impost  in  question  assessed 
on  merchandise  coming  from  Porto  Rico  into  the  United  States 
after  the  ce.-sion  was  within  the  power  of  Congress,  and  that  body 
was  not,  moreover,  as  to  such  impost,  controEed  by  the  clause  re- 
quiring that  imposts  should  be  uniform  throughout  the  United 
States;  in  other  words,  the  provision  of  the  Constitution  just 
referred  to  was  not  applicable  to  Congress  in  legislating  for  Porto 
Eico." 

S  178.  Position  of  Justice  Brown. 

In  a  separate  opinion  Justice  Brown  concurred  in  the  reswlt 
p-ndied  by  the  four  justices  whose  reasoning  we  have  just  been 
considering,  but  reached  this  result  by  laying  down  a  doctrine 
that  was  agreed  to  by  no  other  of  the  members  of  the  court.     In- 

.d  of  holding  that  the  term  "  United  States,"  as  used  in  the 
Constitution  with  reference  to  certain  of  the  limitations  placed  by 
that  instrument  upon  the  powers  of  Congress,  included  the  States 
and  those  Territories  which  had  been  incorporated  into  the  Union, 
as  held  the  four  justices  in  whose  judgment  lie  concurred,  he 
declared  that,  strictly  speaking,  the  "United  States"  was  to  be 
construed  as  referring  only  to  the  States,  and  not  to  any  other 
territory,  whether  incorporated  or  unincorporated.  In  fact  Justice 
Brown  does  not  admit  the  existence  of  a  distinction  between  in- 
corporated and  unincorporated  Territories,  holding  that  as  to  all 
«  xtra-Stafe  districts  the  constitutional  limitations  upon  the  powers 
of  Congress  apply  only  when,  by  congressional  action,  the  Consti- 
tution has  been  extended  over  them. 

After  calling  attention  to  the  fact  that,  as  decided  in  the  case 
of  De  Lima  v.  Bid  well,  by  cession  by  treaty  with  a  foreign  power, 
a  territory,  already  in  the  actual  possession  of  the  United  States, 


422  United  States  Constitutional  Law. 

at  once  ceased  to  be  foreign  and  became  domestic  territory, 
Brown  points  out  that  the  cases  under  consideration  involve  the 
further  and  more  important  question  whether  upon  their  becom- 
ing domestic  territory  the  provisions  of  the  federal  Constitution 
were  extended  of  their  own  force  —  ex  propria  vigore  —  over 
them.  The  'Constitution  not  itself  directly  giving  an  answer  to 
this,  the  solution  he  says  will  have  to  be  found  in  the  nature  of  the 
government  created  by  that  instrument.  According  to  this  justice's 
view,  this  instrument  was  created,  if  not  by  the  States,  at  least 
exclusively  for  the  States,  and  not  for  the  Territories  or  any  other 
extra-State  lands  that  might  belong  to  the  United  States.  Thus, 
to  quote  his  own  words,  "  It  can  nowhere  be  inferred  that  the 
Territories  were  considered  a  part  of  the  United  States.  The 
Constitution  was  created  by  the  people  of  the  United  States,  as 
a  union  of  States;  and  even  the  provision  relied  upon  here,  that 
all  duties,  imposts,  and  excises  should  be  uniform  '  throughout 
the  United  States '  is  explained  by  the  subsequent  provisions  of 
the  Constitution,  that  '  no  tax  or  duty  shall  be  laid  on  articles 
exported  from  any  State,'  and  '  no  preference  shall  be  given  by 
any  regulation  of  commerce  or  revenue  to  the  ports  of  one  State 
over  those  of  another ;  nor  shall  vessels  bound  to  or  from  one  State 
to  be  obliged  to  enter,  clear,  or  pay  duties  in  another.'  In  short, 
the  Constitution  deals  with  States,  their  people  and  their  repre- 
sentatives. The  Thirteenth  Amendment  to  the  Constitution  pro- 
hibiting slavery  and  involuntary  servitude  '  within  the  United 
States,  or  in  any  place  subject  to  their  jurisdiction  '  is  also  signifi- 
cant as  showing  that  there  may  be  places  within  the  jurisdiction 
of  the  United  States  that  are  not  part  of  the  Union.  .  .  .  Upon 
the  other  hand,  the  Fourteenth  Amendment,  upon  the  subject  of 
citizenship,  declares  only  that  '  all  persons  born  or  naturalized 
in  the  United  States,  and  subject  to  the  jurisdiction  thereof,  are 
citizens  of  the  United  States,  and  of  the  State  wherein  they  re- 
side.' Here  there  is  a  limitation  to  persons  born  or  naturalized 
in  the  United  States,  which  is  not  extended  to  persons  born  in  any 
place  '  subject  to  their  jurisdiction.'  " 


The  Insular  Cases.  423 

To  restate,  then,  the  position  of  Justice  Brown,  it  would  appear 
that,  according  to  his  view,  the  "  United  States  "  when  looked  at 
from  the  domestic  or  constitutional  viewpoint,  includes  in*  the 
Union  only  the  individual  States  such  as  Virginia,  New  York, 
Texas,  etc.  The  Federal  District,  the  Territories,  and,  in  fact, 
all  areas  not  within  the  boundaries  of  some  one  of  these  States, 
though  under  the  national  sovereignty  are  not  a  part  of  the  Union. 
Looked  at,  however,  from  the  international  standpoint,  the  term 
"  United  States  "  has,  as  Justice  Brown  later  observes,  "  a  broader 
meaning  than  when  used  in  the  Constitution,  and  includes  all  ter- 
ritories subject  to  the  jurisdiction  of  the  Federal  Government, 
wherever  located.  In  its  treaties  and  conventions  with  foreign 
nations  this  government  is  a  unit.  This  is  so,  not  because  the 
Territories  comprise  a  part  of  the  government  established  by  the 
people  of  the  States  in  their  Constitution,  but  because  the  Federal 
Government  is  the.  only  authorized  organ  of  the  territories,  as  well 
as  of  the  States,  in  their  foreign  relations."  7 

Not  being  considered  a  part  of  the  political  unit  created  and 
organized  by  the  federal  Constitution,  it  would  seem  logically  to 
follow  that  the  non-State  areas,  or  rather  their  populations,  would 
not  be  entitled  to  any  of  the  privileges  or  immunities  defined  in 
that  instrument.  But  Justice  Brown  does  not  draw  this  con- 
clusion. Speaking  of  the  limitations  laid  upon  the  powers  of 
Congress  by  the  Constitution,  he  says :  "  There  is  a  clear  dis- 
tinction between  such  prohibitions  as  go  to  the  very  root  of  the 
power  of  Congress  to  act  at  all,  irrespective  of  time  and  place, 
and  such  as  are  operative  only  '  throughout  the  United  States  '  or 
among  the  several  States.  Thus,  when  the  Constitution  declares 
that  "  no  bill  of  attainder  or  ex  post  fa^to  law  shall  be  passed,' 
and  that  'no  title  of  nobility,  shall  be  granted  by  the  United 
States  '  it  goes  to  the  competency  of  Congress  to  pass  a  bill  of  that 
description.  Perhaps  the  same  remark  may  be  applied  to  the 
First  Amendment  that  '  Congress  shall  make  no  law  respecting  an 
establishment  of  religion,  or  prohibiting  the  free  exercise  thereof; 

'  Citing  De  Geofroy  v.  Riggs,  133  U.  S.  258;  10  Sup.  Ct.  Rep.  295;  33  L.  ed. 
642. 


424  United  States  Constitutional  Law. 

or  abridging  the  freedom  of  speech;  or  "of  the  press;  or  the  right 
of  the  people  to  peacefully  assemble  and  to  petition  the  govern- 
ment for  a  redness  of  grievances.'  We  do  not  wish,  however,  to 
be  understood  as  expressing  an  opinion  how  far  the  bill  of  rights 
contained  in  the  first  eight  Amendments  is  of  general  and  how 
far  of  local  application.  Upon  the  other  hand,  when  the  Consti- 
tution declares  that  all  duties  shall  be  uniform  '  throughout  the 
United  States'  it  becomes  necessary  to  inquire  whether  there  be 
any  territory  over  which  Congress  has  jurisdiction  which,  is  not 
a  part  of  the  '  United  States,'  by  which  term  we  understand  the 
States  whose  people  united  to  form  the  Constitution,  and  such  as 
have  since  been  admitted  to  the  Union  upon  an  equality  with 
them."  And  later  on  he  says:  "We  suggest,,  without  intending 
to  decide,  that  there  may  be  a  distinction  between  certain  natural 
rights  enforced  in  the  Constitution  by  prohibitions  against  inter- 
ference with  them,  and  what  may  be  termed  artificial  or  remedial 
rights  which  are  peculiar  to  our  system  of  jurisprudence.  Of  the 
former  class  are  the  rights  to  one's  own  religious  opinions  and  to 
a  public  expression  of  them,  or,  as  sometimes  said,  to  worship 
God  according  to  the  dictates  of  one's  own  conscience;  the  right 
to  personal  liberty  and  individual  property,  to  freedom  of  speech 
and  of  the  press ;  to  free  access  to  courts  of  justice,  to  due  process 
of  law,  and  to  an  equal  protection  of  the  laws ;  to  immunities  from 
unreasonable  searches  and  seizures,  as  well  as  cruel  and  unusual 
punishments ;  iand  to  such  other  immunities  as  are  indispensable 
to  a  free  government.  Of  the  latter  class  are  the  rights  to  citizen- 
ship, suffrage  (Minor  v.  Happersett,  21  Wall.  102;  22  L.  ecL 
G2T),  and  to  the  particular  methods  of  procedure  pointed  out  in 
the  Constitution,  which  are  peculiar  to  Anglo-Saxon  jurispru- 
dence, and  some  of  which  have  already  been  held  by  the  States  to 
be  unnecessary  to  the  proper  protection  of  individuals. 

"  Whatever  may  be  finally  decided  by  the  American  people  as 
to  the  status  of  these  islands  and  their  inhabitants, —  whether 
they  shall  be  introduced  into  the  sisterhood  of  States  or  be  per- 
mitted to  form  independent  governments  —  it  does  not  follow  that 
in  the  meantime,  awaiting  that  decision,  the  people  are  in  the 


Tin:   IxsiL.ui  Cases.  42  o 

matter  of  personal  rights  unprotected  by  the  provisions  of  our 
Constitution  and  subject  to  the  merely  arbitrary  control  of  Con- 
gn ->5.  Even  if  regarded  as  aliens,  they  are  entitled  under  the 
principles  of  the  Constitution,  to  be  protected  in  life,  liberty,  and 
property.  This  has  been  frequently  held  by  this  court  in  respect 
to  the  Chinese,  even  when  aliens,  not  possessed  of  the  political 
rights  of  citizens  of  the  United  States  [citing  cases].  We  do  not 
desire,  however,  to  anticipate  the  difficulties  which  would  natur- 
ally arise  in  this  connection,  but  merely  to  disclaim  any  intention 
to  hold  that  the  inhabitants  of  these  territories  are  subject  to  an 
unrestrained  power  on  the  part  of  Congress  to  deal  with  them 
upon  the  theory  that  they  have  no  rights  which  it  is  bound  to 
respect." 

According,  then,  to  Justice  Brown,  there  are  some  provisions 
<>f  the  Constitution  that  control  Congress  and  their  inhabitants 
when  legislating  for  such  territories  as  are  not  within  the  States 
and  others  that  do  not  so  apply.  Those  that  do  not,  he  says,  may, 
however,  be  made  applicable  by  acts  of  Congress,  and  in  part  this 
has  already  been  done  in  the  case  of  all  but  the  recently-acquired 
■&  And,  he  implies  that  when  the  Constitution  has  been 
once  formally  extended  to  Territories  and  their  inhabitants, 
neither  Congress  nor  the  territorial  legislature  can  enact  laws 
inconsistent  therewith.  As  to  this  last  assertion  it  has  been  argued 
that  if  an  act  of  legislation  is  required  to  extend  the  Constitu- 
tion over  a  territory,  it  goes'  there  not  as  a  Constitution  but  as 
p  statute,  and  an  irrepealable  statute  is  admitted  by  everyone  to  be 
an  impossibility  —  every  legislature  necessarily  possessing  a 
power  to  repeal  equal  to  its  power  to  enact.  This  being  so,  if  the 
premises  of  Justice  Brown  be  accepted,  the  conclusion  is  drawn 
that  at  the  present  time,  every  Territory  of  the  United  States, 
organized  or  unorganized,  contiguous  or  non-contiguous,  conti- 
nental and  insular,  still  remains,  except  possibly  as  to  a  few  gen- 
eral rights,  al  solnt<  ly  subject  to  the  arbitrary  will  of  Congress. 
Arizona,  Xew  Mexico,  Oklahoma  and  even  the  District  of  Colum- 
bia in  this  respect,  it  is  argued,  stand  upon  a  footing  exactly  the 
same  as  that  of  Porto  Rico  or  the  Philippines. 


426  United  States  Constitutional  Law. 

It  is  not  certain,  however,  that  the  premises  of  this  argument 
are  sound.  It  would  seem  that  there  are  some  legislative  acts 
which  produce  results  which  cannot  be  nullified  by  subsequent 
action  of  the  legislative  body.  Thus,  to  give  a  single  example,  new 
States  are  admitted  into  the  Union  by  enabling  acts  of  Congress, 
but  Congress  may  not,  by  subsequent  action,  expel  the  States  so 
admitted  from  the  Union.  A  similar  conclusive  effect  might  be 
given  to  acts  extending  the  Constitution  over  the  territories. 

In  support  of  his  position  Justice  Brown  cites  numerous 
instances  in  the  history  of  the  United  States  in  which  acts  of 
Congress  have  been  limited  in  their  application  to  the  States,  or, 
where  their  application  to  the  Territories  has  been  desired,  express 
provision  to  that  effect  has  been  made.  The  decisions  of  the 
Supreme  Court,  however,  upon  the  question  whether  the  limita- 
tions of  the  Constitution  extend  ex  proprio  vigore  over  the  Terri- 
tories, he  ^admits  to  have  been  "  not  altogether  harmonious." 
Those  which  upon  their  face  seem  inconsistent  with  his  position 
he  explains  or  attempts  to  explain  away.  Thus  he  avoids  the 
case  of  Loughbrough  v.  Blake8  by  saying  that  the  District  of 
Columbia  having  once  been  a  part  of  a  State,  it  could  not  by 
cession  to  the  General  Government  be  deprived  of  the  constitu- 
tional rights  which  it  had  once  enjoyed.9 

8  5  Wh.  317;  5  L.  ed.  98. 

9  He  says :  "  There  could  be  no  doubt  as  to  the  correctness  of  this  con- 
clusion, so  far,  at  least,  as  it  applied  to  the  District  of  Columbia.  This 
District  had  been  a  part  of  the  States  of  Maryland  and  Virginia.  It  had 
been  subject  to  the  Constitution,  and  was  a  part  of  the  United  States. 
The  Constitution  had  attached  to  it  irrevocably.  There  are  steps  which  can 
never  be  taken  backward.  The  tie  that  bound  the  States  of  Maryland  and 
Virginia  to  the  Constitution  could  not  be  dissolved,  without  at  least  the 
consent  of  the  federal  and  state  governments  to  a  formal  separation.  The 
mere  cession  of  the  District  of  Columbia  to  the  Federal  Government  relin- 
quished the  authority  of  the  States,  but  it  did  not  take  it  out  of  the 
United  States  or  from  under  the  aegis  of  the  Constitution.  Neither  party  bad 
ever  consented  to  that  construction  of  the  cession.  If,  before  the  District 
was  set  off,  Congress  had  passed  an  unconstitutional  act  affecting  its  in- 
habitants, it  would  have  been  void.  If  done  after  the  District  was  created, 
it  would  have  been  equally  void;  in  other  words.  Congress  could  not  do 
indirectly,  by  carving  out  the  District,  what  it  could  not  do  directly.  The 
District  still  remained  a   part  of  the  United  States,  protected  by  the  Con- 


The  Insular  Cases.  427 

Other  cases  he  explains  away  by  maintaining  that  prior  to  the 
accruing  of  the  causes  of  action  litigated  in  them,  the  Constitution 
had  been  extended  by  act  of  Congress  over  the  Territories  con- 
cerned. 

The  very  radical  position  taken  by  Justice  Brown  in  the  Insular 
Cases  has  been  stated  at  some  length  because  of  the  prominence 
that  has  been  given  it  in  the  public  discussions  of  the  judgments 
rendered  in  the  Insular  Cases.  As  a  matter  of  fact,  however,  as 
we  have  already  learned,  this  position  was  not  concurred  in  by 
any  one  of  the  other  eight  justices,  and  it  thus  stands  not  only 
unsupported  by  previous  opinions  of  the  court,  but  in  flat  contra- 
diction to  many  of  them.  The  "  United  States,"  as  that  term  is 
employed  in  the  Constitution,  the  four, concurring  justices  said, 
includes  not  simply  the  States,  as  Justice  Brown  had  said,  but 
also  such  Territories  as  have  been  "incorporated"  with  them; 
and  the  Constitution  itself,  therefore,  extends  over  them  as  well  as 
over  the  States  —  not  of  course,  however,  in  the  sense  that  the 
powers  of  Congress  when  legislating  for  the  States  and  the  incor- 
porated Territories  are  the  same,  but  that,  so  far  as  applicable, 
the  provisions  of  the  Constitution  are  at  once  applicable  to  all 
Territories  subject  to  the  sovereignty  of  the  United  States,  and, 
therefore,  require  no  act  of  Congress  for  their  extension,  nor  can 
their  application  to  such  Territories  be  denied  by  Congress. 

§  179.  Argument  of  Dissenting  Justices. 

Four  justices  (Chief  Justice  Fuller,  and  Justices  Harlan, 
Brewer  and  Peckham)  dissented  from  the  judgment  rendered  in 
Downes  v.  Bidwell.  According  to  their  view  there  is  no  constitu- 
tional distinction  to  be  drawn  between  Territories  incorporated 
in  the  United  States  and  Territories  unincorporated  and  merely 
appurtenant  to  the  United  States.  States  and  Territories,  they 
declare,  are  the  only  political  units  known  to  American  Constitu- 
tional Law,  and  when  by  a  treaty  of  cession  and  actual  occupa- 
tion, lands  and  their  inhabitants  have  come  under  the  sovereignty 

stitution.  Indeed,  it  would  have  been  a  fanciful  construction  to  hold  that 
territory  which  had  once  been  a  part  of  the  United  States  ceased  to  be 
such  by  being  ceded  directly  to  the  Federal  Government." 


428  United  States  Constitutional  Law. 

of  the  United.  States  such,  hinds  are  necessarily  a  part  of  the 
United  States,  and  no  approving  act  of  Congress  is  needed  or  is 
efficient  to  increase  the  constitutional  privileges  to  which  they  are 
entitled  and  to  make  effective  the  legislative  limitations  upon  the 
powers  of  Congress. 

After  calling  attention  to  the  essential  character  of  the  General 
Government  as  one  of  constitutionally  limited  powers,  the  opinion 
declares:  "The  powers  delegated  by  the  people  to  their  agents 
are  not  enlarged  hy  the  expansion  of  the  domain  within  which 
they  are  exercised.  "When  the  restriction  on  the  exercise  of  a 
particular  power  by  a  particular  agent  is  ascertained,  that  is  an 
end  of  the  question.  To  hold  otherwise  is  to  overthrow  the  basis 
of  our  constitutional  law  and  moreover,  in  effect,  to  reassert  the 
proposition  that  the  States,  and  not  the  people,  created  the  gov- 
ernment." 

With  reference  to  the  competence  of  the  treaty-making  power 
to  "  incorporate  "  territory  in  the  United  States,  the  dissenting 
justices  urge  that  the  right  of  annexation  being  admitted  and  the 
Constitution  not  providing  for,  or  recognizing  as  possible,  terri- 
tory appurtenant  to  but  not  incorporated  into  the  United  States, 
it  follows  that  when  territory  is  annexed  by  treaty,  such  territory 
becomes  an  integral  part  of  the  United  States  any  provisions  in 
the  treaty  to  the  contrary  notwithstanding.  Upon  this  point, 
having  referred  to  the  clause  of  the  treaty  of  1898  with  Spain 
to  the  effect  that  "  The  civil  rights  and  political  status  of  the 
native  inhabitants  of  the  territories  hereby  ceded  to  the  United 
States  shall  be  determined  by  Congress,"  the  opinion  reads: 
"  This  was  nothing  more  than  a  declaration  of  the  accepted  prin- 
ciples of  international  law  applicable  to  the  status  of  the  Spanish 
subjects  and  of  the  native  inhabitants.  It  did  not  assume  that 
Congress  could  deprive  the  inhabitants  of  ceded  territory  of  rights 
to  which  they  might  be  entitled.  The  grant  by  Spain  could  not 
enlarge  the  powers  of  Congress,  nor  did  it  purport  to  secure  from 
the  United  States  a  guaranty  of  civil  or  .political  privileges.  In- 
I  deed,  a  treaty  which  undertook  to  take  away  Avhat  the  Constitu- 
tion secured,  or  to  enlarge  the  federal  jurisdiction,  would  be 
simply  void." 


The  Insular   Cases.  4i'!» 

In  the  separate  opinion  which  he  prepared,  Justice  HaTlan  was 
especially  emphatic  in  his  repudiation  both  of  the  doctrine  as- 
serted by  Justice  Brown  that  the  Constitution  was  created  u  by 
the  people  of  the  United  States,  as  a  union  of  States,  to  be  gov- 
erned solely  by  representatives  of  the  States,"  and  of  the  theory 
of  the  other  four  justices  as  to  the  status  of  u  unincorporated  " 
Territories.10 

§  180.  Summary  and  Criticism  of  Downes  v.  Bidwell. 

In  order  fully  to  appreciate  the  radical  character  of  the  doctrine 
held  by  the  four  justices  who  concurred  Avith  Justice  Brown  in 
the  judgment  in  the  Downes  case,  it  is  necessary  clearly  to  appre- 
ciate that,  it  was  held,  in  effect,  that  this  so-called  incorporation 
of  a  Territory  by  Congress  in  the  United  States  is  not  an  act,  the 
commission  of  which  is  determined  by  facts,  but  only  by  the 
formal  declaration  of  an  intention,  express  or  implied,  by  Con- 
gress. So  long  as  this  intention  is  not  declared,  a  territory  is 
declared  to  remain  unincorporated  in  the  United  States  notwith- 
standing the  fact  that,  as  was  the  case  in  Porto  Rico,  a  complete 
territorial  government  may  have  been  created,  federal  courts 
established,  with  the  right  of  appeal  therefrom  to  the  United 
States  Supreme  Court,  and  all  the  local  officials  required  to  take 
an  oath  to  support  the  Constitution  of  a  Union  of  which  they  were 

rt> '"  In  view  of  the  adjudication*  of  this  court."  he  declares,  "  I  cannot  assent 
to  the  proposition,  whether  it  be  announced  in  express  words  or  by  implica- 
tion, that  the  National  Government  is  a  government  of  or  by  the  States 
in  anion,  and  that  the  prohibitions  and  limitations  of  the  Constitution  are 
addressed  only  to  the  States.  That  is  but  another  form  of  sayinjr  that,  like 
the  government  created  by  the  Articles  of  Confederation,  the  present  govern- 
ment is  a  mere  league  of  States,  held  together  by  a  compact  between  them- 
selves-, whereas,  as  this  court  has  often  declared,  it  is  a  government  created 
by  the  people  of  the  United  States,  with  enumerated  powers,  and  supreme 
over  States  and  individuals  with  respect  to  certain  objects,  throughout  the 
entire  territory  over  which  its  jurisdiction  extends.  If  the  National  Govern- 
ment is  in  any  sense  a  compact,  it  is  a  compact  between  the  people  of  the 
United  States  among  themselves  as  constituting  in  the  aggregate  the  political 
community  by  whom  the  National  Government  was  established.  Tl»e  Constitu- 
tion speaks,  not  simply  to  the  States  in  their  organized  capacities,  but  to 
all  peoples,  whether  of  States  or  Territories,  who  are  subject  to  the  authority 
of  the  United  States." 


430  United  States  Constitutional  Law. 

not  a  part.  Especially  difficult  to  accept  is  the  declaration  that 
the  treaty-making  power  of  the  Xational  Government  is  by  itself 
incompetent  to  add  territory  to  the  United  States  in  a  domestic, 
constitutional  sense.  The  authority  of  treaty-making  power  to 
annex  territory  is  conceded ;  the  Constitution  itself  places  treaties 
upon  a  plane  of  equality  with  the  statutes  of  Congress;  and  the 
Supreme  Court  has  repeatedly  affirmed  that  a  subsequent  treaty 
operates  as  a  repeal  of  all  acts  of  Congress  inconsistent  with  it; 
wherefore  it  would  seem  irresistible  to  follow  that  when  the  treaty- 
making  power  has  accepted  an  unconditional  cession  of  territory 
to  the  United  States,  that  act  is  as  absolutely  valid  and  as  fully 
operative  as  though  Congress  itself  had  legislated  upon  the  sub- 
ject To  assert  the  contrary  is,  in  effect,  to  say  that  the  treaty- 
making  and  the  law-making  powers  are  not  coordinate  in  author- 
ity, the  express  provision  of  the  Constitution  to  the  contrary 
notwithstanding. 

Another  objection  to  the  doctrine  of  the  Downes  case  which  it 
seems  absolutely  impossible  to  overcome,  is  that,  in  reality,  it  does 
not  simply  assert  the  right  of  Congress  to  legislate  regarding 
unincorporated  territory  without  regard  to  some  of  the  limitations 
imposed  by  the  Constitution,  but  declares  that  in  the  exercise  of 
this  absolute  power  Congress  may,  in  effect  at  least,  disregard 
those  same  restrictions  with  reference  to  the  inhabitants  of  the 
States  of  the  Union.  Xo  argument  is  needed  to  show  that  a  tariff 
law  which  affects  articles  taken  from  a  State  to  an  unincorporated 
territory,  or  from  the  latter  to  the  former,  affects  the  inhabitants 
of  both,  and  cannot  therefore  be  said  to  be  simply  a  local  law. 
But  if  not  limited  in  its  effects  to  the  unincorporated  territory  in 
question,  it  would  seem  to  be  an  act  necessarily  subject  to  the  con- 
stitutional limitations  placed  upon  Congress  when  legislating  for 
the  States.  It  is,  therefore,  impossible  to  escape  the  argument  of 
the  dissenting  justices  in  the  Downes  case  when  they  say:  "  Con- 
ceding that  the  power  to  tax  for  the  purposes  of  territorial  govern- 
ment is  implied  from  the  pewer  to  govern  territory,  whether  the 
latter  power  is  attributed  to  the  power  to  acquire  or  the  power  to 
make  needful  rules  and  regulations,  these  particular  duties  are 


The  Ixsulak  Cases.  431 

nevertheless  not  local  in  their  nature,  but  are  imposed  as  in  the 
exercise  of  national  powers.  The  levy  is  clearly  a  regulation  of 
commerce,  and  a  regulation  affecting  the  States  and  their  people 
as  well  as  this  Territory  and  its  people.  ...  In  any  point  of 
view,  the  imposition  of  duties  on  commerce  operates  to  regulate 
commerce,  and  is  not  a  matter  of  local  legislation;  and  it  follows 
that  the  levy  of  these  duties  was  in  the  exercise  of  the  national 
power  to  do  so,  and  subject  to  the  requirement  of  geographical 
uniformity." 

Lastly,  it  may  be  said  in  objection  to  the  doctrines  declared  in 
the  Downes  case,  that  in  attempting  to  give  to  Congress  a  right  to 
legislate  for  certain -Territories  under  United  States  sovereignty, 
free  from  certain  limitations  placed  by  the  Constitution  upon  its 
powers,  there  is  seriously  weakened,  if  not,  from  a  strictly  logical 
standpoint,  absolutely  destroyed,  that  most  fundamental  principle 
of  our  constitutional  jurisprudence  according  to  which  all  the 
provisions  of  the  Constitution  are  equally  binding  upon  Congress. 
The  distinction  that  is  made  between  the  absolute  prohibitions  of 
legislative  power  and  the  limitations  imposed  by  the  Constitution 
upon  the  exercise  of  the  powers  that  are  granted,  is  clearly  not 
calculated  to  support  the  conclusion  that  Congress  under  certain 
circumstances  may  disregard  the  latter  when  it  may  not  the 
former.  As  Chief  Justice  Fuller  declared  in  his  dissenting  opin- 
ion :  "  It  is  idle  to  discuss  the  distinction  between  a  total  want 
of  power  and  a  defective  exercise  of  it;"  and  again,  "  The  powers 
delegated  by  the  people  to  their  agents  are  not  enlarged  by  the 
expansion  of  the  domain  within  which  they  are  exercised.  When 
the  restriction  on  the  exercise  of  a  particular  power  by  a  particu- 
lar agent  is  ascertained,  that  is  an  end  to  the  question.  To  hold 
otherwise  is  to  overthrow  the  basis  of  our  constitutional  law." 
Mr.  Carlisle  in  the  address  from  which  we  have  already  once 
quoted,  has  also  shown  so  clearly  the  fallacy  of  the  argument  of 
the  prevailing  opinion  upon  this  point  we  may  quote  his  words. 
He  says :  "  The  distinction  attempted  to  be  taken  between  the 
obligatory  force  of  absolute  prohibitions  upon  the  power  of  Con- 
gress and  the  obligatory  force  of  limitations  and  qualifications  im- 


432  United  States  Constitutional  Law. 

posed  by  the  Constitution  upon  the  exercise  of  its  powers  over  a 
particular  subject,  cannot,  in  uiy  opinion,  be  sustained  by  any 
sound  process  of  reasoning.  It  is  true  that  there  is  a  difference 
in  degree  between  an  absolute  denial  of  all  power  to  do  a  par- 
ticular thing  and  a  grant  of  power  to  do  that  thing  to  a  limited 
extent,  or  in  a  prescribed  manner  only ;  but  the  absolute  prohibi- 
tion and  the  express  or  implied  limitation  are  equally  obligatory 
upon  Congress.  It  is  bound  to  obey  both  or  its  act  is  void.  .  .  . 
To  say  that  Congress,  in  legislating  for  a  Territory,  is  not  bound 
by  the  constitutional  limitations  upon  a  granted  power,  but  is  or 
may  be  bound  by  the  express  prohibitions,  is  simply  to  assert  that 
all  parts  of  the  Constitution  are  not  of  equal  force  and  effect  as 
restraints  upon  ]egislation,  and  that  a  power  not  granted  may  be 
constitutionally  exercised  if  it  is  not  expressly  prohibited,  a 
theory,  which,  if  sanctioned  by  the  judiciary,  would  at  once  revo- 
lutionize the  government.  It  would  no  longer  be  a  government  of 
enumerated  and  delegated  powers,  but  would  .possess  the  whole 
mass  of  sovereign  power  which  is  now  vested  in  the  people,  sub- 
ject only  to  the  comparatively  few  express  prohibitions." 

It  will  have  been  seen  that  the  net  result  of  the  decision  in 
Downes  v„  Bid  well,  whether  we  follow  the  reasoning  of  Justice 
Brown,  or  of  the  four  justices  who  concurred  in  the  judgment 
rendered,  is  that  as  to  Territories  which  have  not  been  incorpo- 
rated into  the  United  States  (or,  according  to  Justice  Brown,  over 
which  the  Constitution  has  not  been  extended  by  act  of  Congress) 
Congress  is  not  limited  by  some  of  the  restrictions  enumerated 
or  implied  in  the  Constitution.  Just  which  of  these  limitations 
do  not,  in  such  cases,  control  Congress,  it  remains  for  the  Supreme 
Court  to  determine  in  each  particular  case  as  the  point  arises. 

In  Downes  v.  Bidwell  it  was  held  that  the  restriction  that  "  all 
duties,  excises,  and  imposts  shall  be  uniform  throughout  the 
United  States  "  does  not  -apply. 

§  181.  Status  of  Hawaii:  Hawaii  v.  Mankichi. 

In  Hawaii  v.  Mankichi1'1  it  was  held  that  the  provisions  of  the 
Fifth  and  Sixth  Amendments  with  reference  to  indictment  by  a 

«  190  U.  S.  197;  23  Sup.  Ct.  Rep.  787;  47  L.  ed.  1016. 


The  IxsrLAi?  Cases.  433 

grand  jury  and  trial  by  petit  jury,  also  did  not  apply.  The  facts 
and  questions  of  law  involved  in  this  case  were  these.  The  Joint 
Kf->lution  of  Congress  of  July  7,  1898,  had  provided  for  the 
annexation  of  the  Hawaiian  Islands  "as  a  part  of  the  territory 
of  the  United  States,  and  -subject  to  the  sovereign  dominion 
thereof.''  The  Resolution,  indeed,  expressly  declared  that  u  The 
municipal  legislation  of  the  Hawaiian  Islands  .  .  .  not  incon- 
sistent with  this  Joint  Resolution,  nor  contrary  to  the  Constitu- 
tion of  the  United  States,  nor  to  any  existing  treaty  of  the  United 
tes,  shall  remain  in  force  until  the  Congress  of  the  United 
«s  shall  otherwise  determine."  After  the  annexation  to  the 
United  States,  Congress  not  having  determined  otherwise,  the 
defendant  in  error,  Mankichi,  was  tried  for  and  convicted  of 
manslaughter  according  to  the  usual  course  of  procedure  in  force 
in  the  Republic  of  Hawaii  prior  to  Jury  7,  189S,  which  course  of 
procedure  did  not  require  the  indictment  to  be  found  by  a  grand 
jury,  and  which  permitted  a  less  number  than  the  entire  twelve 
of  the  petit  jury  to  convict.  An  application  for  a  writ  of  habeas 
corpus  having  been  made  by  Mankichi  upon  the  ground  that, 
according  to  the  Constitution  of  the  United  States,  no  one  might 
be  tried  for  manslaughter  except  upon  an  indictment  or  present- 
ment found  by  a  grand  jury,  nor  convicted  except  by  a  unanimous 
petit  jury,  and  the  case  having  been  appealed  to  the  Supreme 
Court  of  the  United  States,  that  tribunal  was  called  upon  to  deter- 
mine: first,  whether  it  was  the  intention  and  the  necessary  effect 
of  the  annexing  Joint  Resolution  to  make  these  constitutional 
i-ioDs  immediately  applicable  to  the  islands;  and  secondly, 
if  it  did  not,  whether  it  lay  within  the  power  of  Congress  or  of 
the  authorities  of  Hawaii  to  deny  to  the  accused  the  rights  in 
question.  Both  of  these  questions  the  majority  of  the  court,  five 
justices,  answered  in  the  affirmative. 

Here,  however,  as  in  Downes  v.  Bidwell,  the  justices  consti- 
tuting the  majority  did  not  acree  in  their  rea>'Uiinir.  Justice 
'Brown,  in  his  opinion,  admitting  that  a  literal  inteqn*etation  of 
the  Resolution  would  support  Mankiehi's  claim,  but  arguing  ah 
inconvenient'},  itwwlu  that  it  could  not  have  been  the  intention  of 
28 


434  United  StatEvS  Constitutional  Law. 

Congress  "  to  interfere  with  the  existing  practice,  when  such 
interference  would  result  in  imperilling  the  peace  and  good 
order  of  the  islands."  "  Of  course  under  the  Newlands 
resolution,"  he  continues,  "  any  new  legislation  must  con- 
form to  the  Constitution  of  the  United  States;  but  how 
far  the  exceptions  to  the  existing  municipal  legislation  were 
intended  to  abolish  existing  laws  must  depend  somewhat 
upon  circumstances.  Where  the  immediate  application  of  the 
Constitution  required  no  new  legislation  to  take  the  place  of 
that  which  the  Constitution  abolished,  it  may  be  well  held  to  have 
taken  immediate  effect ;  but  where  the  application  of  a  procedure 
hitherto  well  known  and  acquiesced  in  left  nothing  to  take  its 
place,  without  new  legislation,  the  result  might  be  so  disastrous 
that  we  might  well  say  that  it  could  not  have  been  within  the 
contemplation  of  Congress.  In  all  probability  the  contingency 
which  has  actually  arisen  occurred  to  no  one  at  the  time.  If  it 
had,  and  its  consequences  were  foreseen,  it  is  incredible  that 
Congress  should  not  have  provided  against  it.  It  is  not  intended 
here  to  decide  that  the  words  '  nor  contrary  to  the  Constitution 
of  the  United  States '  are  meaningless.  Clearly  they  would  be 
operative  upon  any  municipal  legislation  thereafter  adopted,  and 
upon  any  proceedings  thereafter  had,  when  the  application  of  the 
Constitution  would  not  result  in  the  destruction  of  existing  pro- 
visions conducive  to  the  peace  and  good  order  of  the  community. 
Therefore  we  should  answer  without  hesitation  in  the  negative 
the  question  put  by  counsel  for  the  petitioner  in  their  brief: 
'  Would  municipal  statutes  of  Hawaii,  allowing  a  conviction  of 
treason  on  circumstantial  evidence,  or  on  the  testimony  of  one 
witness,  depriving  a  person  of  liberty  by  the  will  of  the  legis- 
lature and  without  process  or  confiscating  private  property  for 
public  use  without  compensation,  remain  in  force  after  an  annexa- 
tion of  the  territory  to  the  United  States,  which  was  conditioned 
upon  the  extinction  of  all  legislation  contrary  fo  the  Constitu- 
tion ? '  We  would  even  go  farther,  and  say  that  most,  if  not  all, 
the  privileges  and  immunities  contained  in  the  Bill  of  Rights 
of  the  Constitution  were  intended  to  apply  from  the  moment  of 


The  Insuxak  Cases.  435 

annexation;  but  we  place  our  decision  of  this  case  upon  the 
ground  that  the  two  rights  alleged  to  be  violated  in  this  case  are 
not  fundamental  in  their  nature,  but  concern  merely  a  method 
of  procedure  which  sixty  years  of  practice  had  shown  to  be  suited 
to  the  conditions  of  the  islands,  and  well  calculated  to  conserve 
the  rights  of  their  citizens  to  their  lives,  their  property,  and  their 
well  being." 

In  a  concurring  opinion  Justices  White  and  McKenna  base 
their  conclusion  on  the  doctrine  that  by  the  annexing  Resolution 
Congress  had  not  intended  to  incorporate  the  islands  eo  instanii 
into  the  United  States.  With  regard  to  the  provision  that  the 
municipal  legislation  of  Hawaii  not  contrary  to  the  Constitution 
of  the  United  States  should  remain  in  force,  they  say:  "Now, 
in  so  far  as  the  Constitution  is  concerned,  the  clause  subjecting 
the  existing  legislation  which  was  provisionally  continued  to  the 
control  of  the  Constitution,  clearly  referred  only  to  the  provi- 
sions of  the  Constitution  which  were  applicable,  and  not  to  those 
which  were  inapplicable.  In  other  words,  having,  by  the  resolu- 
tion itself,  created  a  condition  of  things  absolutely  incompatible 
with  immediate  incorporation,  Congress,  mindful  that  the  Con- 
stitution was  the  supreme  law,  and  that  its  applicable  provisions 
were  operative  at  all  times,  everywhere,  and  upon  every  condi- 
tion and  persons,  declared  that  nothing  in  the  Joint  Resolution 
continuing  the  customs  legislation  and  local  law  should  be  con- 
sidered as  perpetuating  such  laws,  where  they  were  inconsistent 
with  those  fundamental  provisions  of  the  Constitution  which 
were,  by  their  own  force,  applicable  to  the  territory  with  which 
Congress  was  dealing." 

Chief  Justice  Fuller  and  Justices  Brewer,  Peckham,  and  Har- 
lan dissented.  The  first  three  of  these,  after  adverting  to  the 
impropriety  of  an  argument  ab  inconvenienti,  content  themselves 
simply  with  the  statement  that,  as  a  matter  of  fact,  the  provision 
of  the  resolution  of  annexation  which  has  been  quoted  above,  vali- 
dating all  existing  legislation,  except  such  as  might  be  contrary 
to  the  Constitution  of  the  United  States,  should  be  construed  as 
having  extended  over  the  islands  the  Fifth  and  Sixth  Amend- 


436  United  States  Cox^titutioxal  Law. 

ments  to  that  instrument.  Justice  Harlan,  however,  in  his  dis- 
senting opinion,  in  addition  to  this,  attacks  the  validity  of  the 
position  assumed  by  the  majority  that  it  was  within  the  consti- 
tutional power  of  Congress  to  exclude  from  operation  in  «a  terri- 
tory, incorporate  or  not  incorporate,  any  of  the  provisions  of 
the  Constitution.12 

In  effect,  then,  the  prevailing  doctrine  of  this  Mankiehi  case 
is  to  hold  that  the  provisions  of  the  Constitution  guaranteeing 
indictment  and  trial  by  jury  are  among  those  limitations  which 
do  not  control  CongTess  in  legislating  for  unincorporated  Terri- 
tories, or,  according  to  Justice  Brown,  for  such  Territories  as 
have  not  had  the  Constitution  extended  over  them  by  act  of 
Congress. 

§  1-82.  Right  to  Jury  Held  to  be  not  Fundamental. 

There  can  be  no  -doubt  but  that  this  decision  of  the  court  that 
the  right  to  trial  by  jury  is  not  a  fundamental  right,  but  only 
one  of  practice  and  convenience,  states  a  new  principle  in 
American  jurisprudence.  Blacks  tone  speaks  of  the  right  as  "  the 
most  transcendent  privilege  which  any  subject  can  enjoy  or  wish 
for;"  Kent  deelares.it  "a  fundamental  doctrine;"  Story  that  it 
is  a  "  sacred  and  inviolate  palladium  "  of  liberty ;  and  decisions 
of  our  courts  without  number  have  employed  similar  language  in 
describing  it.13 

A  second  especial  fact  to  be  noted  regarding  the  position  of 
the  four  justices  concurring  with  Brown  in  the  judgment  ren- 

12 He  says:  "I  dissent  altogether  from  any  such  view.  It  assumes  the 
possession  by  Congress  of  power  quite  as  omnipotent  as  that  possessed  by 
the  English  Parliament.  It  assumes  that  Congress,  which  came  into  exist- 
ence, and  exists,  only  by  virtue  of  the  Constitution,  can  withhold  funda- 
mental guarantees  of  life  and  liberty  from  peoples  who  have  come  under 
our  complete  jurisdiction;  who,  to  use  the  words  of  the  United  States 
minister,  have  become  our  fellow-countrymen ;  and  over  whose  country  we  have 
acquired  the  authority  to  exercise  sovereign  dominion.  In  my  judgment  neither 
the  life  nor  the  liberty  nor  the  property  of  any  person,  within  any  territory 
or  country  over  which  the  United  States  is  sovereign,  can  be  taken,  under 
the  sanction  of  any  civil  tribunal  acting  under  its  authority,  by  any  form  of 
procedure  inconsistent  with  the  Constitution  of  the  United  States." 

"  See  article  by  J.  W.  Garner,  entitled  "  The  Right  of  Jury  Trial  in  the 
Dependencies/'  in  American  Laic  Review,  XL3  1. 


The  Ixsri.An   Casks.  ggj 

dered  is.  that  they  render  most  indefinite  the  criteria  by  which 
it  may  be  determined  in  any  given  case  whether  or  not  I  Terri- 
tory has,  in  fact,  been  "  incorporated  "  into  the  United  States. 
In  this  case  the  Territory  in.  question  had  not  been  annexed  by 
the  treaty  power  as  had  the  Territories  involved  in  the  Insular 
Cases  decided  in  1901,  but  by  an  act  of  Congress-  declaring?  it. "  a 
part  of  the  Territory  of  the  United  States,"  and  expressly  making 
the  Constitution  paramount  to  the  loeal  law.  Also  all  the  cir- 
cumstances preceding  and  attending  the  annexation  of  the 
islands  indicated  an  intention  to  "incorporate"  them  into  the 
United  States.  The  treaty  which  the  annexing  resolution,  had 
taken  the  place  of  had  expressly  provided  that  the  islands  "  should 
be  incorporated  into  the  United  States  as  an  integral  part  thereof 
and  under  its  sovereignty,"  and  there  is  absolutely  nothing  to 
show  that  when  the  resolution  for  annexation  was  adopted^,  a 
different  destiny  was  intended  for  them. 

In  Dorr  v.  United  States,14  decided  in  1904^.  it  was  held  that 
trial  by  jury  was  not  a  necessary  incident  of  due  proeess  q£  law 
in  the  Philippine  Islands.  By  the  act  of  Congress  of  1902  pro- 
viding for  the  temporary  government  of  the  PhilippinesF  various 
individual  tights  were  guaranteed,  among  them  that  no  person 
should  be  held  for  a  criminal  offense  without  due  process  of  law. 
But  the  right  to  jury  trial  was  not  mentioned,  and  Seetioir  1&91 
of  the  Revised  Statutes  was  expressly  declared  not  to  be  ap- 
plicable.15 

This  decision  was  necessarily  determined  by  the  Dowries  v. 
Bidwell,  and  United  States  v.  Mankichi  cases;  the  former  ease 
holding  that  unincorporated  territories  were  not  necessarily  en- 
titled to  all  the  privileges  created  by  the  Constitution;  and  the 
latnr  that  the  right  to  a  jury  trial  is  not  a  fundamental  right. 

Justice  Harlan  again  dissented  upon  the  same  grounds  as  those 

given  by  him  in  the  Mankichi  case. 

. . • 

"195  U.  S.  138;  24  Sup.  C  t.  Kep.  BO&j  49  L.  ed.  128. 

15  This  is  the  section  giving  force  and  effect  to  the  Constitution  and  laws 
of  the  United  States  not  inapplicable  within  all  the  organized  Territories  and 
every  Territory  thereafter  organized  as  elsewhere  in  the  United  States. 


433  United  States  Constitutional  Law. 

§  183.  Alaska  Incorporated:  Rassmussen  v.  United  States. 

In  Rassmussen  v.  United  States,16  decided  in  1905,  it  was  held 
that  Alaska  had  been  incorporated  into  the  United  States,  and, 
therefore,  that  the  inhabitants  were  entitled  to  jury  trial.  The 
court  did  not,  however,  attempt  to  lay  down  any  definite  rule  for 
determining  when  incorporation  has  taken  place,  but  contented 
itself  with  quoting  the  following  sentences  from  the  opinion  in 
Dorr  v.  United  States,  and  holding  that  the  treaty  by  which 
Alaska  had  been  acquired,  and  the  legislation  of  Congress  subse- 
quent thereto,  did  not  bring  that  Territory  within  the  category 
of  unincorporated  Territories  according  to  the  test  implied  in  the 
sentences  quoted.  These  quoted  sentences  were  as  follows :  "  If 
the  treaty-making  power  could  incorporate  territory  into  the 
United  States  without  congressional  action,  it  is  apparent  that 
the  treaty  with  Spain,  ceding  the  Philippines  to  the  United 
States,  carefully  refrained  from  so  doing;  for  it  is  expressly  pro- 
vided that  (article  9)  '  the  civil  rights  and  political  status  of  the 
native  inhabitants  of  the  territories  hereby  ceded  to  the  United 
States  shall  be  determined  by  the  Congress.'  In  this  language 
it  is  clear  that  it  was  the  intention  of  the  framers  of  the  treaty 
to  reserve  to  Congress,  so  far  as  it  could  be  constitutionally  done, 
a  free  hand  in  dealing  with  these  newly  acquired  possessions. 
The  legislation  upon  the  subject  shows  that  not  only  has  Congress 
hitherto  refrained  from  incorporating  the  Philippines  into  the 
United  States,  but  in  the  act  of  1902,  providing  for  the  tem- 
porary civil  government  (32  Stat,  at  L.  691,  Chap.  13*69),  there 
is  express  provision  that  Sec.  1891  of  the  Revised  Statutes  of  1878 
shall  not  apply  to  the  Philippine  Islands." 

In  this  Rassmussen  case  the  attempt  had  been  made  to  maintain 
the  doctrine  that,  even  if  incorporated,  Alaska  was  not  entitled 
to  the  right  in  question  for  the  reason  that  it  had  not  been  made 
an  "  organized  "  Territory.  This  contention,  however,  the  court 
held  clearly  unsound.  Incorporation,  and  not  organization,  it  was 
declared  was  the  test  as  to  the  general  applicability  of  the  Con- 
stitution.     Justice  Brown  concurred,   but,   as  might  have  been 

"197  U.  S.  516;  25  Sup.  Ct.  Rep.  514;  49  L.  ed.  862. 


The  Insular  Cases.  439 

expected  from  his  position  in  Downes  v.  Bidwell,  held  that  the 
general  applicability  of  the  Constitution  depended  not  upon  the 
fact  of  incorporation,  but  upon  whether  Congress  had  by  some 
expression  of  its  will  clearly  shown  that  it  intended  that  the  par- 
ticular provision  of  the  Constitution  should  apply. 

Justice  Harlan  in  a  concurring  opinion*  again*  stated  his 
doctrine  that  the  Constitution  in  all  its  provisions  extends  ex 
proprio  vxgore  over  all  Territories  immediately  upon  annexation 
to  the  United  States.  I  cannot  agree,"  he  said,  "  that  the 
supremacy  of  the  Constitution  depends  upon  the  will  of  Con- 
gress." 

§  184.  Other  Insular  Cases. 

In  Binns  v.  United  States17  it  was  held  with  reference  to  license 
fees  imposed  on  certain  kinds  of  luxuries,  that,  though  Alaska 
was  an  incorporated  Territory  and,  therefore,  within  the  scope 
of  the  provision  of  the  Constitution  that  excises  shall  be  uniform 
throughout  the  United  States,  the  tax  in  question  was  valid  as 
an  act  passed  by  Congress  acting  as  a  local  legislature,  and  not 
as  a  general  legislature  exercising  a  power  under  the  clause18 
empowering  it  to  levy  and  collect  taxes  to  pay  the  debts  and 
provide  for  the  common  defense  and  general  welfare  of  the 
United  States. 

In  Kepner  v.  United  States,19  decided  in  1904,  it  was  held  that 
by  an  act  of  Congress  of  1902,  the  immunity  from  double  jeop- 
ardy for  crime  as  provided  in  the  Constitution  had  been  extended 
to  the  Philippines.  The  point  urged  by  the  United  States  in  this 
case  that  the  question  as  to  what  constitutes  double  jeopardy 
should  be  settled  according  to  the  local  Spanish  civil  law,  will 
be  considered  in  another  chapter  of  this  work  in  which  the  Con- 
stitutional provision  regarding  immunity  from  a  second  jeopardy 
for  the  same  criminal  offense  will  be  specially  considered.20 

H194  U.  S.  48G;  24  Sup.  Ct.  Rep.  816;  48  L.  ed.  1087. 
is  Art.   1,   Sec.  VIII,  CI.   1. 

is  195  U.  S.  100;  24  Sup.  Ct.  Rep.  797;  49  L.  ed.  114. 
20  See  section  423. 


440  United  States  Constitutional  Law. 

In  Goeize  v.  United  States  and  Grossman  v.  United  States21 
the  doctrine  of  De  Lima  v..  Bidewell  was  followed  with  reference 
to  taxes  levied  on  goods  imported  into  the  United  States  from 
Porto  Rico  after  the  taking  effect  of  the  Foraker  Act  establishing 
civil  government  in  that  island. 

In  the  so-called  second  Dooley  case22  it  was  held  that  the  tax 
collected  under  the  Foraker  Act  on  goods  imported  into  Porto 
Eico  from  the  United  States  was  not  a  tax  on  goods  exported 
from  a  State  and,,  therefore,,  forbidden  by  the  Constitution.  The 
tax  in  question,  it  was  held,  was  in.  essential  character  rather 
a  local  Porto  Rican  tax  upon  goods  coining  into  that  country, 
than  an  export  tax  on  goods  leaving  the  United  States.  As 
Justice  Brown  in  his  opinion  said :  "  There  can  be  no  doubt 
whatever  that  if  the  legislative  assembly  of  Porto  Rico  should, 
with  the  consent  of  Congress,  lay  a  tax  upon  goods  arriving  from 
ports  of  the  United  States,  such  tax,  if  legally  imposed,  would  be 
a  duty  upon  imports  to  Porto  Rico,  and  not  upon  exports  from 
the  United  States ;  and:  we  think  the  same  result  must  follow  if 
the  duty  be  laid  by  Congress  in  the  interest  and  for  the  benefit 
of  Porto  Rico.  The  truth  is  that,  in  imposing  the  duty  as  a  tem- 
porary expedient,  with  a  proviso  that  it  may  be  abolished  by  the 
legislative  assembly  of  Porto  Rico,  at  its  will,  Congress  thereby 
shows  that  it  is  undertaking  to  legislate  for  the  island  for  the 
time  being  and  only  until  the  local  government  is  put  into  opera- 
tion. The  mere  fact  that  the  duty  passes  through  the  hands  of 
the  revenue  officers  of  the  United  States  is  immaterial,  in  view 
of  the  requirement  that  it  shall  not  be  covered  into  the  general 
fund  of  the  Treasury,  but  be  held  as  a  separate  fund  for  the 
government  and  benefit  of  Porto  Rico.  .  .  .  It  is  not  intended 
by  this  opinion  to  intimate  that  Congress  may  lay  an  export  tax 
upon  merchandise  carried  from  one  State  to  another.  While  this 
does  not  seem  to  be  forbidden  by  the  express  words  of  the  Con- 
stitution, it  would  be  extremely  difficult,  if  not  impossible,  to  lay 
such  a  tax  without  a  violation  of  the  first  paragraph  of  Art.  1, 

21182  U.  S.  221;  21  Sup.  Ct.  Bep.  742;  45  L.  ed.  L065. 
22Dooley  v.  United  States,  T83  U.  S.  151;  22  Sup.  Ct.  Eep.  62;  43  L.  ed. 
128. 


Principles  of  Constitutional  Construction.         441 

Sec.  >,  that  •  all  duties,  imposts  and  excises  shall  be  uniform 
throughout  the  United  States.'  There  is  a  wide  difference 
between  the  full  and  paramount  power  of  Congress  in  legislating 
for  a  Territory  in  the  condition  of  Porto  Eico  and  its  power  with 
ect  to  Suites,  which  is  merely  incidental  to  its-  rights-  to  regu- 
late interstate  commerce.  The  question,  however,  is  not  involved 
in  this  ease,  and  we  do  not  desire  to  express  an  opinion  upon  it." 

In  the  concurring  opinion  read,  by  Justice  White,  the  decision 
is  placed  upon  the  ground  that  the  constitutional  provision 
applies  only  to  goods  exported  to  a  country  wholly  u  foreign  "  to 
the  United  States  and  not  to  a  country  appurtenant,  as  was  Porto 
Pico,  to  the  United  States. 

Four  justices  dissented  holding  that  the  prohibition  operates, 
and  was  intended  to  operate,  as  a  general  limitation  on  the  power 
to  regulate  commerce  whether  interstate  or  foreign.  ''And  this," 
the  dissenting  opinion  says,  "  is  equally  true  in  respect  of  com- 
merce with  the  Territories,  for  the  power  to  regulate  commerce 
includes  the  power  to  regulate  not  only  as  between  foreign 
countries  and  the  Territories,  but  also  by  necessary  implication 
as  between  the  States  and  Territories.  Stoutenbnrgh  v.  Hennick 
l-'it  l'.  S.  141;  9  Sup.  Ct.  Rep.  256;  32  L.  ed.  637." 

'•  The  proposition  that  because  the  proceeds  of  these  duties 
were  to  be  used  for  the  benefit  of  Porto  Rico  they  might  be 
regarded  as  if  laid  by  Porto  Kico  itself  with  the  consent  of  Con- 
-.  and  were  therefore  lawful,  will  not  bear  examination.  Xo 
money  can  be  drawn  from  the  Treasury  except  in  consequence 
of  appropriations  made  by  law.  This  act  does  not  appropriate 
a  fixed  sum  for  the  benefit  of  Porto  Pico,  but  provides  that  the 
money  collected  from  the  citizens  of  the  United  States,  shall  be 
placed  in  a  separate  fund  or  subsequently  in  the  treasury  of 
Porto  Pico,  to  be  expended  for  the  government  and  benefit  thereof. 
And  although  the  destination  of  the  proceeds  in  this  way  were 
lawful,  it  would  not  eonvert  duties  on  articles  exported  from 
States  into  local  taxes.  Stales  may,  indeed,  under  the  Constitu- 
tion lay  duties  on  foreign  imports  and  exports  for  the  use  of  the 
Treasury  of  the  United  States,  with  the  consent  of  Congress,  but 


442  United  Stat.es  Constitutional  Law. 

they  do  not  derive  the  power  from  the  General  Government.  The 
power  pre-existed,  and  it  is  its  exercise  only  that  is  subjected  to 
the  discretion  of  Congress.  Congress  may  lay  local  taxes  in  the 
Territories,  affecting  persons  and  property  therein,  or  authorize 
territorial  legislatures  to  do  so,  but  it  cannot  lay  tariff  duties  on 
articles  exported  from  one  State  to  another,  or  from  any  State 
to  the  Territories,  or  from  any  State  to  foreign  countries,  or 
grant  a  power  in  that  regard  which  it  does  not  possess.  But  the 
decision  now  made  recognizes  such  powers  in  Congress,  as  will 
enable  it,  under  the  guise  of  taxation,  to  exclude  the  products 
of  Porto  Rico  from  the  States  as  well  as  the  products  of  the  States 
from  Porto  Rico;  and  this  notwithstanding  it  was  held  in  De 
Lima  v.  Bidwell  (182  U.  S.  1 ;  21  Sup.  Ct.  Rep.  743;  45  L.  ed. 
1041)  after  the  ratification  of  the  treaty  with  Spain  ceased  to 
be  foreign  and  became  domestic  territory."  23 

In  Lincoln  v.  United  States,  and  Warner,  Barnes  &  Co.  v. 
United  States24  it  was  held  that  the  existence  of  an  avowed  insur- 
rection of  the  natives  in  the  Philippine  Islands  after  the  ratifi- 
cation of  the  treaty  of  peace  with  Spain  did  not  justify  the  exac- 
tion under  a  military  order  of  duties  on  imports  from  the  United 
States  into  Manila  after  that  date.  The  Diamond  Rings  case25 
was  held  to  govern. 

That  the  Thirteenth  Amendment  forbidding  slavery  and  invol- 
untary servitude  except  as  punishment  for  crime  is  of  application 
in  the  unincorporated  as  well  as  in  the  incorporated  Territories, 
is  clear,  its  language  expressly  extending  its  force  not  only  to  the 
United  States  but  to  "  any  place  subject  to  their  jurisdiction." 

Certain  forms  of  slavery  do,  however,  undoubtedly  exist  in 
some  of  the  Philippine  Islands,  but  there  is  of  course  no  legality 
in  this,  and  as  soon  as  is  possible,  the  custom  or  practice  will 
be  suppressed. 

23  This  case  will  be  again  considered  in  Chapter  XLI  in  connection  with  the 
discussion  of  the  taxing  powers  of  the   United   States. 

24  197  U.  S.  419;  25  Sup.  Ct.  Rep.  455;  49  L.  ed.  816. 

25  183  U.  S.  176;  22  Sup.  Ct.  Rep.  59;  46  L.  ed.  138. 


CHAPTER  XXXI. 

CITIZEXSHIP  IX  THE  TERRITORIES. 

§  185.  Effect  of  Cession  of  Territory  on  Citizenship  of  Inhabit- 
ants. 

Whether  or  not  inhabitants  of  territories  ceded  by  one  nation 
to  another  necessarily  have,  according  to  the  principles  of  Inter- 
national Law,  the  option  of  becoming  citizens  of  the  annexing 
State,  or  retaining  their  old  citizenship,  is  a  point  upon  which 
International  Law  writers  do  not  seem  to  be  fully  agreed. 
Rivier,  for  instance,  in  his  recent  work,  "  Principes  du  Droit  des 
Gens,"  declares  that  they  have  not  —  that  unless  expressly  pro- 
vided otherwise,  they  become,  nolens  volens,  the  subjects  of  the 
power  to  which  their  territory  is  united.  Other  text-book  writers, 
Weetlake  and  Halleck,  for  instance,  claim  that  the  treaty  of  ces- 
sion being  silent  upon  this  point,  an  option  exists.1  Halleck 
declares :  "  The  transfer  of  territory  establishes  its  inhabitants 
in  such  a  .position  toward  the  new  sovereignty  that  they  may 
elect  to  become,  or  not  to  become,  its  subjects.  Their  obligations 
to  the  former  government  are  canceled,  and  they  may,  or  may 
not,  become  the  subjects  of  the  new  government,  according  to 
their  own  choice.  If  they  remain  in  the  territory  after  this  trans- 
fer, they  are  deemed  to  have  elected  to  become  its  subjects,  and 
thus  have  consented  to  the  transfer  of  their  allegiance  to  the  new 
sovereignty.  If  they  leave,  sine  animo  revertendi,  they  are 
deemed  to  have  elected  to  continue  aliens  to  the  new  sovereignty. 
The  status  of  the  inhabitants  of  the  conquered  and  transferred 
territory  is  thus  determined  by  their  own  acts.  This  rule  is  the 
most  just,  reasonable,  and  convenient  which  could  be  adopted. 

i  This  right  of  option  as  regards  citizenship  is  not  to  be  confounded  with 
the  right,  by  some  alleged  to  exist,  of  the  inhabitants  to  decide  whether 
or  not  they  will  consent  to  a  transfer  of  sovereignty  over  their  territory 
to  another  power.  Such  a  right  has  never  been  accepted  by  International 
Law  writers,  nor  recognized  by  the  United  States  in  any  of  the  annexations 
by  it  of  new  territories. 

[443] 


44  t  Uxited  States  Constitutional  Law. 

It  is  reasonable  on  the  part  of  the  conqueror,  who  is  entitled  to 
know  who  become  his  subjects  and  who  prefer  to  continue  aliens ; 
it  is  very  convenient  for  those  who  wish  to  become  the  subjects 
of  the  new  State,  and  is  not  unjust  toward  those  who  determine 
not  to  become  its  subjects.  According  to  this  rule,  domicile,  as 
understood  and  defined  in  public  law,  determines  the  question  of 
transfer  of  allegiance,  or  rather,  is  the  rule  of  evidence  by  which 
that  question  is  to  be  decided." 

That,  in.  the  absence  of  treaty  stipulations  to  the  contrary,  the 
citizenship  of  the  inhabitants  of  ceded  territory  is  to  be  deter- 
mined by  the  rule  thus  stated,  is  generally  admitted  by  American 
International  Law  wrriters,  and  has  been  more  than  once  declared 
by  the  United  States  Supreme  Court.  In  American  Insurance 
Co.  v.  Canter,  the  court  say:  u  The  same  act  which  transferred 
their  territory  transfers  the  allegiance  of  those  who  remain  in 
it ;"  and  in  Boyd  v.  Thayer2  it  was  declared  that  "  the  nationality 
of  the  inhabitants  of  territory  acquired  by  conquest  or  cession 
becomes  that  of  the  government  under  whose  dominion  they  pass, 
subject  to  the  right  of  election  on  their  part  to  retain  their  former 
nationality  by  removal  or  otherwise  as  may  be  provided." 

§  186.  Treaty  Provisions. 

In  all  the  treaties  entered  into  by  the  United  States  whereby 
territory  was  acquired,  prior  to  that  with  Spain  in  1S9S,  it  was 
provided  either  that  the  inhabitants  of  the  ceded  territories  re- 
maining therein  should  be  admitted  as  soon  as  possible  to  the 
enjoyment  of  all  the  rights,  advantages,  and  immunities  of  citi- 
zens of  the  United  States,  or  that  they  should  be  "  incorporated 
in  the  Union  of  the  United  States,"  or  both.  It  cannot,  however, 
be  said  with  certainty,  as  has  been  maintained  by  some,  that  it 
was  due  to  these  provisions  that  the  inhabitants  of  the  ceded  ter- 
ritories were  collectively  naturalized,  for  this  point  has  never  Leon 
squarely  passed  upon  by  the  Supreme  Court.  The  undoubted 
purpose  and  the  probable  legal  effect  of  these  provisions  was  only 
to  create  an  obligation  on  the  part  of  the  United  States  not  to 

2  143  U.  S.  135;  12  Sup.  Ct.  Rep.  375;  3G  L.  ed.  103. 


Citizenship    ix    tiik    Tikkiim::  -i-15 

discriminate  civilly  against  these  js  --nd,  when  the  condi- 

tions should  warrant,  to  confer  upon  them  full  political  privileges. 
The  determination  when  this  time  had  arrived  was  left  to  the  dis- 
cretion of  Congress.  Provisions  similar  to  those  of  which  we  have 
been  speaking  are  almost  always  inserted  by  all  nations  in  treaties 
of  cession  at  the  instance  of  the  ceding  power,  as  a  matter  of 
equity,  it  being  but  just  that  in  handing  over  to  the  control  of 
another  power  citizens  of  its  own  that,  as  far  as  possible,  a  State 
should  obtain  a  guarantee  that  they  should  not  be  civilly  or 
politically  oppressed. 

J3y  these  treaties  of  cession  entered  into  by  the  United  States, 
the  inhabitants  of  the  ceded  territories  did  become,  however. 
United  States  citizens  under  the  general  rule  quoted  above,  be- 
cause those  treaties  contained  no  stipulations  to  the  contrary. 

In  the  treaty  of  peace  with  Spain  which  provided  for  the  ces- 
sion to  the  United  States  of  Porto  Rico,  Guam,  and  the  Philip- 
pines we  find  for  the  first  time  appearing  a  provision  expressly 
affirming,  that  the  cession  of  the  islands  is  not  to  operate  as 
a  naturalization  of  their  native  inhabitants,  but  that  the  deter- 
mination of  their  civil  rights  and  political  status  is  to  be  left  to 
the  subsequent  judgment  of  Congress.  Spanish  subjects,  natives 
of  the  Iberian  Peninsula,  but  resident  in  the  islands,  are,  how- 
ever, given  the  right  to  elect  whether  or  not  they  will  retain  their 
old  citizenship  or  become  American  subjects.3 

3  The  provisions  of  the  treaty  upon  these  points  are  as  follows:  "Spanish 
subjects,  natives  of  the  peninsula,  [of  Spain]  residing  in  the  territory  over 
which  Spain  by  the  present  treaty  relinquishes  or  cedes  her  sovereignty, 
may  remain  in  such  territory  or  may  remove  therefrom,  retaining  in  either 
event  all  their  rights  of  property,  including  the  right  to  sell  or  dispose  of 
such  property  or  of  its  proceeds;  and  they  -shall  also  have  the  right  to  carry 
on  their  industry,  commerce,  and  professions,  being  subject  in  respect  thereof 
to  such  laws  as  are  applicable  to  other  foreigners.  In  case  they  remain  in 
the  territory  they  may  piWtlfB  their  allegiance  to  the  Crown  of  Spain  by 
making  before  a  court  of  record  within  a  year  from  the  date  of  exchange  of 
ratifications  of  tli-  treaty,  a  ueclant!  n  of  their  decision  to  preserve  such 
allegiance;  in  default  of  which  declaration  they  shall  be  held  to  have  re- 
nounced it  and  to  have  adopted  the  nationality  of  the  territory  in  which  I 
may  reside. 

The  civil  right  and  political  status  of  the  native  inhabitants  of  the  terri- 
tories hereby  ceded  to  the  United  States  shall  be  determined  by  Congress." 


44G  United  States  Constitutional  Law. 

Relative  to  the  effect  of  the  treaty  provision,  that  the  civil  or 
political  status  of  the  native  inhabitants  of  the  ceded  territories 
are  to  be  determined  by  Congress,  a  question  presents  itself, 
which  has  not  yet  been  passed  upon  by  the  Supreme  Court. 
This  is,  whether  it  is  within  the  constitutional  competence  of  the 
treaty-making  power  to  confer  upon  Congress  the  right  to  de- 
termine whether  or  not  the  inhabitants  of  territories  coming  under 
the  sovereignty  of  the  United  States  shall  become  its  citizens. 
The  Constitution  declares  that  the  acts  of  the  treaty-making 
power,  as  well  as  those  of  the  federal  legislature,  shall  be  the  su- 
preme law  of  the  land.  The  validity  of  both  are,  however,  de- 
pendent upon  their  consonance  with  the  requirements  of  the 
Constitution.  If,  then,  according  to  that  instrument,  there  may 
not  be  the  subjects  of  the  United  States  who  are  not  also  its  citi- 
zens, no  treaty  can  give  to  the  law-making  branch  the  power  to 
treat  any  persons  as  such.  In  the  Insular  Cases  it  was  held  that 
the  islands  obtained  from  Spain  have  not  been  incorporated  in 
the  "  United  States."  Their  inhabitants  have  not  been  naturalized 
by  statute,  and  the  treaty  with  Spain  expressly  refuses  to  them 
citizenship.  The  whole  question  of  their  civil  status  thus  depends 
upon  whether  or  not  they  are  citizens  according  to  the  provision 
of  the  Fourteenth  Amendment,  which  declares  that  "  all  persons 
born  or  naturalized  in  the  United  States,  and  subject  to  the  juris- 
diction thereof,  are  citizens  of  the  United  States  and  of  the  State 
wherein  they  reside."  That  is  to  say  it  will  depend  upon  whether 
the  term  "  United  .States,"  as  here  employed,  will  be  construed  to 
exclude  or  include  "  unincorporated  "  Territories. 

As  has  been  said,  this  question  has  not  been  passed  upon  in 
limine,  by  the  Supreme  Court,  but  the  positions  taken  in  the 
Insular  Cases  would  indicate  that  inhabitants  of  these  insular 
possessions,  though  subject  to  the  sovereignty  of  and  owing  alle- 
giance to  the  United  States,  are  not  citizens  within  the  strict 
constitutional  sense.  Certainly  by  the  executive  and  legislative 
departments  of  the  National  Government  the  position  has  been 
taken  that  they  are  not. 


Citizenship   ik   the   Territories.  447 

§  187.  Statutory  Provisions. 

The  citizens  of  Hawaii  have  been  made  citizens  of  the  United 
States  by  statute  enacted  April  30,  1900. 

The  act  of  June  14,  1902,4  provides  that  no  passport  shall 
be  granted  or  issued  to,  or  verified  for,  any  other  persons  than 
those  owing  allegiance,  whether  citizens  or  not,  to  the  United 
States. 

Under  this  provision  passports  are  now  issued  to  citizens  of 
Porto  Rico  and  of  the  Philippines. 

The  act  of  July  1,  1902,  providing  for  the  administration  of 
civil  government  in  the  Philippine  Islands,  declares  that  "All 
inhabitants  of  the  Philippine  Islands  continuing  to  reside  therein, 
who  were  Spanish  subjects  on  the  11th  day  of  April,  1899,  and 
then  resided  in  said  islands,  and  their  children  born  subsequent 
thereto,  shall  be  deemed  and  held,  to  be  citizens  of  the  Philip- 
pine Islands,  and  as  such  entitled  to  the  protection  of  the  United 
States,  except  such  as  shall  have  elected  to  preserve  their  allegiance 
to  the  Crown  of  Spain  in  accordance  with  the  provisions  of  the 
treaty  of  peace  between  Spain  and  the  United  States,  agreed  at 
Paris,  December  10,  1898." 

The  act  of  April  12,  1900,5  establishing  a  civil  government  for 
Porto  Rico,  provides  that:  ''All  inhabitants  continuing  to  reside 
therein  who  were  Spanish  subjects  on  the  11th  day  of  April,  1899, 
and  then  resided  in  Porto  Rico  and  their  children  born  subsequent 
thereto,  shall  be  deemed  and  held  to  be  citizens  of  Porto  Rico, 
and  as  such  entitled  to  the  protection  of  the  United  States,  except 
such  as  shall  have  elected  to  preserve  their  allegiance  to  the  Crown 
of  Spain,  on  or  before  the  11th  day  of  April,  1900,  in  accordance 
with  the  provisions  of  the  treaty  of  peace  entered  into  on  the  11th 
day  of  April,  1899;  and  they  together  with  such  citizens  of  the 
United  States  as  may  reside  in  Porto  Rico,  shall  constitute  a  body 
politic  under  the  name  of  the  People  of  Porto  Rico,  with  guar- 
anteed powers  as  hereafter  confirmed,  and  with  power  to  sue  and 
be  sued  as  such." 

*  32  Stat,  at  L.  386. 
6  31  Stat,  at  L.  77. 


448  Ujstited  States  Coxstitutioxal  Law. 

Section  30  of  the  Naturalization  Act  of  June  29,  1906,  pro- 
vides: "  That  all  the  applicable  provisions  of  the  naturalization 
laws  of  the  United  States  shall  apply  to  and  be  held  to  authorize 
the  admission  to  citizenship  of  all  persons  not  citizens  who  owe 
permanent  allegiance  to  the  United  States,  and  who  may  become 
residents  of  any  State  or  organized  Territory  of  the  United 
States,  with  the  following  modifications :  The  Applicant  shall  not 
be  required  to  .renounce  allegiance  to  any  foreign  sovereignty ; 
he  shall  make  his  declaration  of  intention  to  become  a  citizen  of 
the  United  States  at  least  two  years  prior  to  his  admission,  and 
residence  within  the  jurisdiction  of  the  United  States,  owing 
such  permanent  allegiance,  shall  be  regarded  as  residence  within 
the  United  States  within  the  meaning  of  the  five  years'  xeeidence 
clause  of  the  existing  law." 

§  188.  Native  Inhabitants  of  Porto  Rico  not  Aliens:  Gonzales  v. 
Williams. 
In  Gonzales  v.  Williams6  it  was  held  that  a  native  of  Porto 
Rico  who  was  an  inhabitant  of  that  island  at  the  time  of  its  cession 
to  the  United  States  is  not  an  "  alien  "  within  the  meaning  of 
the  act  of  Congress  of  March  3,  1891,  providing  for  the  detention 
and  deportation  of  alien  immigrants  likely  to  become  public 
charges.  No  position  is  taken  by  the  court,  however,  with  refer- 
ence to  the  question  of  citizenship.  In  its  opinion  the  court  say : 
"  We.  are  not  required  to  discuss  .  .  .  the  contention  of 
Gonzales'  counsel  that  the  cession  of  Porto  Pico  accomplished 
the  naturalization  of  its  people;  or  that  of  the  commissioner 
Degetau,  in  his  excellent  argument  as  amicus  curiae,  that  a  citi- 
zen of  Porto  Rico,  under  the  act  of  1900,  is  necessarily  a  citizen 
of  the  United  States.  The  question  is  the  narrow  one  whether 
Gonzales  was  an  alien  within  the  meaning  of  that  term  as  used 
in  the  act  of  1891.  .  .  .  We  think  it  clear  that  the  act  re- 
lates to  foreigners  as  respects  this  country,  to  persons  owing 
allegiance  to  a  foreign  government,  and  citizens  and  subjects 
thereof;  and  that  citizens  of  Porto  Pico,  whose  permanent  alle- 
giance is  due  to  the  United  States ;  who  live  in  the  peace  of  the 

6  192  U.  S.  1;  24  Sup.  Ct.  Rep.  171;  48  L.  ed.  317. 


Citizenship   in   the   Tebkitobies.  449 

dominion  of  the  United  States;  the  organic  law  of  whose  domieil 
was  enacted  by  the  United  States,  and  is  enforced  through  of- 
ficials sworn  to  support  the  Constitution  of  the  United  States, — 
are  not  '  aliens,'  and  upon  their  arrival  by  water  at  the  ports  of 
our  mainland  are  not  '  alien  immigrants,'  within  the  intent  and 
meaning  of  the  act  of  1891." 
29. 


CHAPTER  XXXII. 

FOREIGN  RELATIONS:  THE  TREATY  POWER. 
In  the  discussion  of  the  constitutional  power  of  the  United 
States  to  extend  its  sovereignty  over  new  territories  and  to  govern 
such  territories  when  acquired,  the  fact  has  been  adverted  to  and 
relied  upon,  that  the  control  of  the  relations  of  the  United  States 
with  foreign  nations  is  exclusively  vested  in  the  General  Govern- 
ment. We  have  now  to  examine  in  detail  the  consequences  which 
flow  from  this  fact,  and  to  examine  into  the  manner  in  which  the 
Constitution  has  provided  that  the  federal  powers  thus  vested  are 
to  be  exercised. 

§  189.  The  Federal  Power  Exclusive. 

The  exclusiveness  of  the  federal  jurisdiction  in  all  that  con- 
cerns foreign  affairs  is  deducible  both  from  the  national  character 
of  the  General  Government,  and  from  the  express  provisions  of 
the  Constitution. 

The  States  are  expressly  forbidden  to  "  enter  into  any  treaty, 
alliance,  or  confederation,"  "  to  grant  letters  of  marque  and  re- 
prisal," or,  unless  Congress  consents,  to  "  lay  any  duty  of  tonnage, 
keep  troops  or  ships  of  war,  in  time  of  peace,  enter  into  any 
agreement  or  compact  with  another  State,  or  with  a  foreign 
power,  or  engage  in  war  unless  actually  invaded,  or  in  such  im- 
minent danger  as  will  admit  of  no  delay." 

Upon  the  other  hand,  the  General  Government  is  expressly  em- 
powered "  to  provide  for  the  common  defence  and  general  welfare 
of  the  United  States ;"  "  to  regulate  commerce  with  foreign  na- 
tions;" "to  make  treaties;"  "to  establish  an  uniform  rule  of 
naturalization ;"  "  to  define  and  punish  piracies  and  felonies  com- 
mitted on  the  high  seas,  and  offenses  against  the  law  of  nations ;" 
"  to  declare  war,  grant  letters  of  marque  and  reprisal,  and  make 
rules  concerning  captures  on  land  or  water ;"  "  to  raise  and  sup- 
port armies;"  "  to  provide  and  maintain  a  navy;"  "  to  make  rules 

[450] 


Foreign   Relations.  451 

for  the  government  and  regulation  of  the  land  and  naval  forces ;" 
u  to  provide  for  the  calling  forth  the  militia  to  .  .  .  repel 
invasions ;"  "  to  appoint  ambassadors  and  other  public  ministers 
and  consuls;"  to  adjudicate  causes  arising  under  treaties,  and 
all  cases  affecting  ambassadors,  other  .public  ministers  and 
consuls,  cases  of  admiralty  and  maritime  jurisdiction,  and  cases 
between  a  State,  or  the  citizens  thereof,  and  foreign  States,  citi- 
zens and  subjects.  Finally,  it  is  declared  that:  "This  Con- 
stitution, and  the  laws  of  the  United  States  which  shall  be  made 
in  pursuance  thereof;  and  all  treaties  made,  or  which  shall  be 
made,  under  the  authority  of  the  United  States,  shall  be  the  su- 
preme law  of  the  land ;  and  the  judges  in  every  State  shall  be 
bound  thereby,  anything  in  the  Constitution  or  the  laws  of  any 
State  to  the  contrary  notwithstanding." 

From  these  express  grants  of  power  to  the  General  Government, 
and  prohibitions  of  treaty  powers  to  the  States,  the  intention  of 
the  framers  of  the  Constitution  to  invest  the  Federal  Government 
with  the  exclusive  control  of  foreign  affairs  is  readily  deduoible. 

§  190.  The  Federal  Power  All- Comprehensive. 

The  control  of  international  relations  vested  in  the  General 
Government  is  not  only  exclusive,  but  all-comprehensive.  That 
is  to  say,  the  authority  of  the  United  States  in  its  dealings  with 
foreign  powers  includes  not  only  those  powers  which  the  Constitu- 
tion specifically  grants  it,  but  all  those  powers  which  sovereign 
States  in  general  possess  with  regard  to  matters  of  international 
concern.  This  general  authority  in  the  United  States  is  fairly 
deducible  from  the  fact  that  in  its  dealings  with  other  States  the 
United  States  appear  as  the  sole  representative  of  the  American 
people;  that  upon  it  rests,  therefore,  the  obligation  to  perform  all 
the  duties  which  International  "Law  imposed  upon  a  sovereign 
State;  and  that,  therefore,  having  these  duties  to  perform  it  is  to 
be  presumed  to  have  commensurate  powers.  u  That  would  appear 
to  l>e  a  most  unreasonable  construction  of  the  Constitution,"  say 
the  court  in  the  Legal  Tender  Cases,  "  which  denies  to  the  gov- 
ernment created  by  it  the  right  to  employ  freely  every  means,  not 


452  Uxited  States   Constitutional  Law. 

prohibited,  necessary  for  its  preservation,  and  for  the  fulfilment 
of  its  acknowledged  duties."  The  court  then  go  on  to  declare: 
"And  here  it  is  to  'be  observed  it  is  not  indispensable  to  the  exist- 
ence of  any  power  claimed  for  the  Federal  Government  that  it  can 
be  found  specified  in  the  words  of  the  Constitution,  or  clearly 
and  directly  traceable  to  some  one  of  the  specified  powers.  Its 
existence  may  be  deduced  fairly  from  more  than  one  of  the  sub- 
stantive powers  expressly  defined,  or  from  them  all  combined.  It 
is  allowable  to  group  together  any  number  of  them  and  infer  from 
them  all  that  the  power  claimed  has  been  conferred. 
And  it  is  of  importance  to  observe  that  Congress  has  often  exer- 
cised, without  question,  powers  that  are  not  expressly  given  nor 
ancillary  to  any  single  enumerated  power.  Powers  thus  exercised 
are  what  are  called  by  Judge  Story,  in  his  Commentaries  on  the 
Constitution,  resulting  powers,  arising  from  the  aggregate  powers 
of  the  government.  He  instances  the  right  to  sue  and  make  con- 
tracts.   Many  others  might  be  given."  * 

This  doctrine  thus  asserted  in  the  Legal  Tender  Cases  has  been 
especially  emphasized  by  the  Supreme  Court  in  passing  upon  the 
constitutional  power  of  the  United  States  to  exclude  or  expel 
undesirable  aliens.  In  the  Chinese  Exclusion  Cases2  the  court 
say:  "While  under  our  Constitution  and  form  of  government 
the  great  mass  of  local  matters  is  controlled  by  local  authorities, 
the  L'nited  States,  in  their  relation  to  foreign  countries  and  their 
subjects  or  citizens,  are  one  nation,  invested  with  powers  which 
belong  to  independent  nations,  the  exercise  of  which  can  be  in- 
voked for  the  maintenance  of  its  absolute  independence  and  secu- 
rity throughout  its  entire  territory.  .  .  .  The  control  of  local 
matters  being  left  to  local  authorities,  and  national  matters  being 
intrusted  to  the  Government  of  the  L'nion,  the  problem  of  free 
institutions  existing  over  a  widely  extended  country,  having  dif- 
ferent climates  and  varied  interests,  has  been  happily  solved.  For 
local  interests  the  several  States  of  the  Union  exist,  but  for  the 
national  purposes,  embracing  our  relations  with  foreign  nations, 
v.t  are  but  one  people,  one  nation,  one  power." 

i  12  Wall.  437;  20  L.  ed.  2S7. 

»130  U.  S.  5S1;  9  Sup.  Ct.  Rep.   623;   32  L.  ed.   1068. 


F<>i;ki<;x    Uki.atioxs.  453 

And  in  Ekiu  v.  United  States3  the  court  declare:  "It  is  an 
accepted  maxim  of  international  law,  that  every  sovereign  nation 
has  the  }X)\ver,  as  inherent  in  sovereignty,  and  essential  to  self- 
preservation,  to  forbid  the  en  trance  of  foreigners  within  its 
dominions,  or  to  admit  them  only  in  such  case  and  upon  such  con- 
ditions as  it  may  see  fit  to  prescribe.  Vattel,  lib.  2,  94,  100;  1 
Phillimore  (3d.  ed.),  chap.  10,  §  220.  In  the  United  States  this 
power  is  vested  in  the  national  government,  to  which  the  Con- 
stitution has  committed  the  entire  control  of  international  re- 
lations, in  peace  as  well  as  in  war." 

Again  in  Fong  Yue  Ting  v.  United  States,4  the  following 
language  is  used :  "  The  right  to  exclude  or  expel  all  aliens,  or 
any  class  of  aliens,  absolutely  or  upon  certain  conditions,  in  war 
or  in  peace,  being  an  inherent  and  inalienable  right  of  every 
sovereign  and  independent  nation,  essential  to  its  safety,  its  inde- 
pendence, and  its  welfare,  the  question  now  before  the  court  is 
whether  the  manner  in  which  Congress  has  exercised  this  right  in 
sections  0  and  7  of  the  Act  of  1892  is  consistent  with  the  Con- 
stitution. The  United  States  are  a  sovereign  and  independent 
nation,  and  are  vested  by  the  Constitution  with  the  entire  control 
'  of  international  relations,  and  with  all  the  powers  of  govea*nment 
necessary  to  maintain  that  control  and  make  it  effective.  The 
only  government  of  this  country,  which  other  nations  recognize 
or  treat  with,  is  the  Government  of  the  Union;  and  the  only 
American  flag  known  throughout  the  world  is  the  flag  of  the 
United  States." 

In  an  earlier  chapter  we  have  seen  that  the  power  of  the  United 
States  to  annex  territory  is  deducible  not  merely  from  such  ex- 
press  grants  of  power,  as  to  enter  into  treaties,  to  declare  war, 
etc.,  but  from  the  national  sovereignty  of  the  United  States  in 
its  international  relations. 

The  reasoning  of  the  court  in  maintenance  of  the  principle 
that  in  all  that  concerns  foreign  relations  the  United  States  has 
the  same  plenitude  of  constitutional  power  as  that  possessed  by 

»142  U.  S.  651;  12  Sup.  Ct.  Rep  336;  35  L.  ed.  1146. 
4  149  U.  9.  B9»;  13  Sup.  Ct,  Rep.  1016;  37  L.  ed.  905. 


454  United  States  Constitutional  Law. 

other  sovereign  States  is  sound.  This  appeal,  however,  to  the  fact 
of  "  national  sovereignty  w  as  a  source  of  federal  power  is  not  a 
valid  one  outside  of  the  international  field.  It  cannot  properly  bo 
resorted  to  when  recognition  of  an  international  obligation  on  the 
part  of  the  United  States  is  not  involved,  and  when,  therefore,  the 
matter  is  purely  one  relating  to  the  reserved  powers  of  the  States 
or  to  the  private  rights  of  the  individuals.  To  permit  the  doc- 
trine to  apply  within  these  fields  would  at  once  render  the  Federal 
Government  one  of  unlimited  powers.5 

5  The  Supreme  Court  has,  however,  upon  several  occasions  employed  lan- 
guage which  would  imply  the  acceptance  of  the  doctrine  in  this  improper 
manner,  or,  at  least,  has  appealed  to  it  in  support  of  conclusions  reached 
upon  other  grounds.  Thus  in  the  Legal  Tender  Cases  ( 12  Wall.  457 ;  20 
L.  ed.  287)  Justice  Bradley  says:  "The  United  States  is  not  only  a  govern- 
ment, but  it  is  a  national  government,  and  the  only  government  in  this 
country  that  has  the  character  of  nationality.  It  is  vested  with  power  over 
all  foreign  relations  of  the  country,  war,  peace,  and  negotiations  and  inter- 
course with  other  nations;  all  which  are  forbidden  to  the  state  governments. 
It  has  jurisdiction  over  all  those  general  subjects  of  legislation  and  sovereignty 
which  affect  the  interests  of  the  whole  people  equally  and  alike,  and  which 
require  uniformity  of  regulation  and  laws.  .  .  .  Such  being  the  character 
of  the  General  Government,  it  seems  to  be  a  self-evident  proposition  that  it  is 
invested  with  all  those  inherent  and  implied  powers  which,  at  the  time  of 
adopting  the  Constitution,  were  generally  conceded  to  belong  to  every  govern- 
ment as  such,  and  a3  being  essential  to  the  exercise  of  its  functions." 

And  in  Juillard  v.  Greenman  (110  U.  S.  421;  4  Sup.  Ct.  Rep.  122;  28 
L.  ed.  204)  the  court  derive  additional  support  for  its  position  upholding 
the  constitutionality  of  the  Legal  Tender  laws,  from  the  doctrine  that  sover- 
eign nations  generally  have  the  power.  The  court,  in  its  opinion,  say: 
"  The  power,  as  incident  to  the  power  of  borrowing  money  and  issuing  bills 
or  notes  of  the  Government  for  money  borrowed,  of  impressing  upon  those 
bills  or  notes  the  quality  of  being  a  legal  tender  for  the  payment  of  private 
debts,  was  a  power  universally  understood  to  belong  to  sovereignty,  in 
Europe  and  America,  at  the  time  of  the  framing  and  adoption  of  the  Con- 
stitution of  the  United  States.  The  governments  of  Europe,  acting  through 
the  monarch  or  the  legislature,  according  to  the  distribution  of  powers  under 
their  respective  constitutions,  had  and  have  as  sovereign  a  power  of  issuing 
paper  money  as  of  stamping  coin.  .  .  .  The  exercise  of  this  power  not  being 
prohibited  to  Congress  by  the  Constitution,  it  is  included  in  the  power  ex- 
pressly granted  to  borrow  money  on  the  credit  of  the  United  States,  .  .  . 
Congress  as  the  legislature  of  a  sovereign  nation,  being  expressly  empowered 
by  the  Constitution  to  lay  and  collect  taxes,  etc.  .  .  .  and  the  power  to 
make  the  notes  of  the  government  a  legal  tender  in  the  payment  of  private 
debts  being   one   of   the   powers   belonging   to    sovereignty   in   other   civilized 


Foreign   Relations.  455 

In  summary,  then,  we  may  say  that  the  United  States  Govern- 
ment though  one  of  complete  powers  in  all  that  relates  to  its  deal- 
ings with  foreign  States,  is,  in  all  other  respects,  one  of  limited, 
enumerated  powers. 

§  191.  The  Manner  of  Exercise  of  the  Treaty-making  Power. 

The  Constitution6  provides  that  the  President  "  shall  have 
power,  by  and  with  the  advice  and  consent  of  the  Senate,  to  make 
treaties,  provided  two-thirds  of  the  Senators  present  concur." 

It  was  not  until  the  closing  days  of  the  Constitutional  Conven- 
tion that  the  President  was  associated  with  the  Senate  in  the 
negotiation  and  ratification  of  treaties.  Upon  August  23d,  how- 
ever, Madison  observed,  u  that  the  Senate  represented  the  States 
alone,  and  for  this  .as  well  as  other  obvious  reasons  it  was  proper 
that  the  President  should  be  made  an  agent  in  the  treaties." 
September  4th,  the  Committee  to  which  undetermined  sections  of 
the  Constitution  had  been  referred,  reported  back  the  treaty  clause 
in  substantially  the  form  in  which  it  now  appears.  The  only  dis- 
cussion which  the  clause  then  received  was  with  reference  to  the 
size  of  the  majority  that  should  be  required  in  the  Senate  for 
approval  of  treaties,  and  whether  treaties  of  peace  should  not,  by 
way  of  exception,  require  only  a  simple  majority  vote. 

The  second  clause  of  Article  VI  of  the  Constitution  declares 
that   "  This   Constitution,    and    the  laws   of   the   United    States 

nations,  and  not  expressly  withheld  from  Congress  by  the  Constitution;  we 
are  irresistibly  impelled  to  the  conclusion  that  the  impressing  upon  the 
treasury  notes  of  the  United  States  the  quality  of  being  a  legal  tender  in 
the  payment  of  private  debts  is  an  appropriate  means,  conducive  and  plainly 
adapted  to  the  execution  of  the  undoubted  powers  of  Congress." 

In  the  foregoing  it  will  be  observed  that  the  court  find  the  legal  tender 
power  implied  in  other  powers  expressly  given  by  the  Constitution  to  Congress, 
but  the  validity  of  this  implication  it  founds  on  the  nature  of  sovereignty 
as  exemplified  in  the  political  world  generally. 

Again  in  United  States  v.  Jones  (109  U.  S.  513;  3  Sup.  Ct.  Rep.  346; 
27  L.  ed.  1015)  with  reference  to  its  powers  of  eminent  domain,  the  court 
say:  "The  power  to  take  private  property  for  public  uses,  generally  termed 
the  right  of  eminent  domain,  belongs  to  every  independent  government  It  is 
an  incident  of  sovereignty,  and  as  said  in  Boom  v.  Patterson  (98  U.  S.  403; 
25  L.  ed.  206),  requires  no  constitutional  recognition." 

6  Art.  II,  Sec.  2,  CI.  2. 


456  United  States  Constitutional  Law. 

which  shall  be  made  in  pursuance  thereof;  and  all  treaties  made, 
or  which  shall  be  made,  under  the  authority  of  the  United  States, 
shall  be  the  supreme  law  of  the  land;  and  the  judges  in  every 
State  shall  be  bound  thereby;  anything  in  the  Constitution  and 
laws  of  any  State  to  the  contrary  notwithstanding."  It  had  been 
suggested  in  the  Convention  by  Gouverneur  Alorris  that  no  treaty 
should  be  binding  on  the  United  States  until  ratified  by  a  law, 
but,  the  disadvantages  of  such  a  provision  being  pointed  out,  the 
suggestion  was  voted  own.  A  proposal  was  also  made,  but  re- 
jected because  of  the  often  necessity  of  secrecy,  that  the  House 
of  Representatives  should  participate  with  the  Senate  in  the  rati- 
fication of  treaties. 

That  treaties  duly  ratified  should  bind  the  States,  and  be 
beyond  their  power  to  change,  was  never  questioned  in  the  Conven- 
tion. Until  August  23d,  it  was  agreed  that  the  General  Govern- 
ment should  have  an  express  power  to  enforce  by  arms  all  treaties, 
but  this  provision  was  then  stricken  out  for  the  reason  that  treaties 
being  expressly  declared  to  have  the  force  of  law,  the  federal 
judicial  power  would  have  sufficient  authority  to  determine  when 
they  were  infringed  and  to  order  their  enforcement. 

In  the  state  ratifying  conventions  the  fact  that  treaties  were  to 
be  superior  to  state  constitutions  and  laws  created  not  a  little  fear 
of  possible  oppression.  In  Virginia  Patrick  Henry  raised  strong 
objection  to  this,  and  in  several  States  there  was  urged  the  neces- 
sity of  an  amendment  specifically  declaring  that  no  treaty  should 
operate  to  change  the  Constitution  of  a  State. 

§  192.  The  Negotiation  of  Treaties. 

With  respect  to  the  manner  in  which  treaty-making  is,  accord- 
ing to  the  Constitution,  to  be  conducted,  the  first  question  that 
arises  is  as  to  the  extent  to  which  the  Senate  may  properly  par- 
ticipate not  only  in  the  ratification,  but  in  the  preliminary  negoti- 
ation of  international  agreements. 

In  the  same  clause,  indeed  in  the  same  sentence,  of  the  Con- 
stitution in  which  provision  is  made  for  entering  into  treaties. 
it  is  provided  that  the  President  "  shall  nominate  and  by   and 


Foeeigx   Rklatioxs.  457 

with  the  advice  of  the  Senate  shall  appoint  ambassadors,  other 
public  ministers  and  consuls,"  etc.  Here  the  phraseology  shows 
that  the  act  of  nominating  the  public  officials  mentioned,  is 
clearly  distinguished  from  their  appointment.  They  are  to  be 
nominated  by  the  President,  but  to  be  appointed  by  the  Senate 
and  President  The  negotiating  of  treaties  is  not,  however,  by  the 
phraseology  of  the  treaty  clause  thus  sharply  distinguished  from 
tiieir  ratification  as  regards  the  federal  organs  by  which  this  nego- 
tiation and  ratification  is  to  be  performed.  The  language  is  that 
the  President  "  shall  have  power,  by  and  with  the  advice  and  con- 
sent of  the  Senate,  to  make  treaties,"  not  that  u  he  shall  negotiate, 
and,  with  the  consent  of  the  Senate,  ratify  treaties." 

As  further  indicative  of  an  intended  participation  of  the  Senate, 
in  the  negotiation  of  treaties  is  the  fact,  already  adverted  to,  that 
in  the  Convention,  until  almost  the  last  moment,  it  was  agreed 
that  the  treaty-making  power  should  be  vested  exclusively  in  the 
Senate,  a  body  the  membership  of  which  at  that  time  it  was 
thought  would  remain  comparatively  small.7 

Actual  practice  exhibits  frequent  instances  in  which  the  Senate 
has  participated  in  the  negotiation  of  treaties. 

During  the  first  years  under  the  Constitution  the  relations  be- 
tween the  President  and  the  Senate  were  especially  close.  In 
ITS'  President  Washington  notified  the  Senate  that  he  would  con- 
fer with  them  with  reference  to  a  treaty  with  certain  of  the  Indian 
tribes,  and,  on  the  next  day,  and  again  two  days  later,  went  with 
General  Knox  before  that  body  for  that  purpose.  Again,  in  1790, 
President  Washington  in  a  written  communication  asked  the  ad- 
vice of  the  Senate  as  to  a  new  boundary  treaty  to  be  entered  into 

I  It  would  appear  that  the  original  intention  of  the  framers  of  the  Consti- 
tution was  that  the  Senate  should  act  more  as  an  executive  council  than 
as  an  upper  legislative  chamber.  See  Ford,  Rise  and  Croxrth  of  American 
I'lilitri-s.  "  The  law  makes  the  Senate  the  adviser  of  the  President  in  the  mak- 
ing of  a  treaty  through  all  its  stages  —  not  that  it  requires  that,  in  every 
instance,  the  President  shall  have  the  advice  and  consent  of  the  Senate, 
l>ut  that,  in  every  instance,  the  President  has  the  right  to  have  it,  and 
correspondingly,  in  every  instance,  the  Senate  has  the  right  to  enforce  it. 
It  is  a  reciprocal  right  for  a  common  benefit."  Senator  A.  0.  Bacon  in  the 
\orth  American  lirvkic,  April  19,   HH)G. 


458  United  States  Constitutional  Law. 

with  the  Cherokees.  So  also,  in  1791,  he  asked  the  Senate  to 
advise  him  as  to  what  answer  to  be  made  to  the  French  Charge 
des  Affaires,  with  regard  to  a  question  of  tonnage  on  foreign 
vessels. 

John  Quincy  Adams  in  his  Memoirs8  relates  that  Craw- 
ford told  him  that  Washington  went  to  the  Senate  with  a 
draft  of  a  treaty ;  that  "  they  debated  it,  and  proposed  alterations, 
so  that,  when  Washington  left  the  Senate  Chamber,  he  said  he 
would  be  damned  if  he  ever  went  there  again.  And  ever  since 
that  time  treaties  have  been  negotiated  by  the  Executive  before 
submitting  them  to  the  consideration  of  the  Senate." 

In  fact,  however,  the  Presidents  did  continue  occasionally  to 
consult  with  the  Senate  in  regard  to  the  negotiation  of  treaties. 

In  1794,  when  sending  the  name  of  John  Jay  as  Envoy  Ex- 
traordinary to  England,  Washington  explained  to  the  Senate  his 
purpose  in  doing  so ;  and  the  same  was  done  by  President  Adams 
in  1797  when  nominating  the  special  commission  to  France.9 

§  193.  Powers  of  the  Senate. 

After  the  first  few  years  under  the  Constitution,  however,  the 
practice  on  the  part  of  the  President  of  consulting  the  Senate  with 
regard  to  the  treaties  to  be  negotiated,  became  an  infrequent  one, 
but  yet  not  one  wholly  obsolete.  Thus,  in  1818,  President  Monroe 
asked  the  Senate  whether  he  alone  as  Executive  was  constitution- 
ally competent  to  arrange  with  Great  Britain  as  to  naval  arma- 
ments upon  the  Great  Lakes ;  and,  if  not,  that  they  would  give  him 
advice  as  to  the  proper  agreement  with  reference  thereto,  that 
should  be  entered  into.  Again,  in  1830,  President  Jackson  asked 
the  advice  of  the  Senate  as  to  the  terms  of  a  treaty  to  be  negoti- 
ated with  the  Choctaw  Indians.  His  message,  however,  bears 
evidence  to  the  fact  that  he  is  aware  that  he  is  departing  from 
the  practice  of  years  immediately  .preceding,   though  not  from 

s  VII,  427. 

9  For  other  instances  in  which  during  the  early  days,  as  well  as  at 
later  times,  the  advice  of  the  Senate  has  been  asked  by  the  President  in 
the  negotiation  of  international  agreements,  see  Crandall,  Treaties:  Their 
Making  and  Enforcement,  pp.  54  et  seq.  and  an  article  in  Rcribner's  Magazine. 
Jan.,  1902,  by  Senator  Henry  Cabot  Lodge,  entitled  "The  Treaty-making 
Power." 


Foreign  Relations.  459 

that  of  the  early  period.  He  says :  "  I  am  aware  that  in  thus 
resorting  to  the  early  practice  of  the  government,  by  asking  the 
previous  advice  of  the  Senate  in  the  discharge  of  this  portion  of 
my  duties,  I  am  departing  from  a  long  and  for  many  years  un- 
broken usage  in  similar  cases.  But  being  satisfied  that  this  resort 
is  consistent  with  the  provisions  of  the  Constitution,  that  it  is 
strongly  recommended  in  this  instance  by  considerations  of  ex- 
pediency, and  that  the  reasons  which  have  led  to  the  observance 
of  a  different  practice,  though  very  cogent  in  negotiations  with 
foreign  nations,  do  not  apply  with  equal  force  to  those  made  with 
Indian  tribes,  I  natter  myself  that  it  will  not  meet  with  the  dis- 
approbation of  the  Senate."10 

In  the  article  already  referred  to,  Senator  Lodge  enumerates 
a  not  inconsiderable  number  of  instances  down  to  comparatively 
recent  times  in  which  the  Senate  has  participated  in  the  negotia-' 
tion  of  treaties. 

In  a  number  of  cases  the  Senate  has  by  resolution  suggested  to 
the  President  that  certain  negotiations  be  initiated.  Thus  in 
1835  the  Senate  requested  the  President  to  open  negotiations  with 
the  Central  American  governments  with  a  view  to  securing  treaties 
granting  protection  to  such  individuals  as  might  undertake  the 
construction  of  an  interoceanic  canal.  In  1SSS,  President  Cleve- 
land was  requested  by  the  Senate  to  open  negotiations  with  China 
for  the  regulation  of  immigration  of  subjects  of  that  country  into 
the  United  States.  In  1880,  by  a  concurrent  resolution,  the  Sen- 
ate and  House  of  Representatives  requested  the  Executive  to  seek 
the  co-operation  of  other  Powers  in  providing  for  the  amicable 
settlement    by    arbitration   of    disputes    which   could   be   settled 

10  *;  Secretary  Webster,  in  the  important  negotiations  which  he  conducted 
for  the  adjustment  of  the  northeastern  boundary  kept  the  Senate  advised  of 
the  progress  of  the  negotiations  and  it  was  mainly  for  that  reason  he 
was  able  to  carry  the  treaty  by  an  overwhelming  vote  in  the  Senate  which 
was  politically  hostile  to  the  administration.  Secretary  Buchanan,  before 
signing  the  treaty  adjusting  the  Oregon  boundary,  submitted  the  full  text 
to  the  Senate  and  received  an  informal  note  approving  it.  President  Jackson 
e\en  consulted  the  Senate  as  to  the  propriety  of  refusing  to  accept  the  award 
(under  a  treaty)  of  the  King  of  the  Netherlands,  and  procured  a  note  of 
body  advising  him  as  to  the  course  to  be  pursued."  (J.  W*.  Foster  in 
Yale  Laic  Journal,  XI,  71.) 


460  United  States  Constitutional  Law. 

through  the  ordinary  diplomatic  channels.  By  an  act  of  Con- 
gress, the  President  was,  in  1902,  advised  and  authorized  to  enter 
into  certain  treaty  arrangements  with  reference  to  the  construc- 
tion of  an  interoceanic  canal. 

All  c£  the  instances  cited  above  are,  however,  by  way  of  general 
exception  to  the  rule  according  to  which  the  negotiating  of 
treaties  is  in  the  hands  of  the  President.  The  Senate's  function, 
so  far  at  least  as  its  formal  action  is  concerned,  is  limited  to  the 
disapproval,  or  ratification,  with  or  without  amendments,  of  the 
treaties  after  they  have  been  agreed  upon  by  the  President  and 
the  chancelleries  of  the  foreign  countries  concerned. 

Though,  as  has  just  been  said,  the  formal  participation  of  the 
Senate  as  a  body  in  the  negotiation  of  treaties  is  not  often  now 
solicited,  as  a  matter  of  fact  that  body  is,  according  to  modern 
usage  frequently,  indeed,  it  might  be  said,  generally,  kept  well 
informed  as  to  the  progress  of  international  negotiations  by  means 
of  personal  interviews  between  the  Executive  and  prominent  Sen- 
ators, especially,  of  course,  those  serving  upon  the  Committee  on 
Foreign  Affairs  of  the  Senate.  In  1898  three  of  the  five  Com- 
missioners appointed  to  negotiate  the  Treaty  of  Peace  with  Spain 
were  Senators  and  members  of  the  Committee  on  Foreign  Affairs. 

Xevertheless,  this  practice  has  not  prevented  frequent  friction 
between  the  Senate  and  the  Executive  with  reference  to  foreign 
relations.  Especially  has  this  been  true  since  the  time  when  Mr. 
Blaine  held  the  position  of  Secretary  of  State.  From  the  time 
when  Monroe  became  Secretary  of  State  in  IS  11  to  the  resig- 
nation of  Mr.  Blaine  in  1892,  with  the  exception  of  a  very 
few  years,  this  Secretaryship  was  held  by  men  who  had  previously 
been  in  the  Senate,  but  since  then,  with  the  exception  of  Sherman 
and  Knox,  this  has  not  been  true."  Speaking  of  the  lack  of  har- 
mony which  has  existed  during  this  recent  period,  Professor 
Reinsch  writes:  "  Under  these  circumstances,  it  is  not  surprising 
that  there  should  have  been  more  friction  between  the  President 
and  the  Senate  on  foreign  matters  than  existed  during  earlier  years 
of  our  national  life.  Such  constant  friction  as  has  during  recent 
years  existed  between  the  Senate  and  the  Department  of  Star 

n  Cf.  Reinsch,  American  Legislatures,  p.  95. 


Foreiox  Relations.  461 

in  fact,  unprecedented  in  our  national  history.  It  began  under 
Mr.  Cleveland's  regime,  when  the  Olney-Pauncefote  arbitration 
treaty  was  rejected,  partly  on  account  of  the  unpopularity  of  the 
Administration,  partly  on  account  of  a  strong  political  opposition 
to  any  arbitration  arrangements  with  Great  Britain.  Even  under 
McKinley,  notwithstanding  the  unusual  relations  of  friendliness 
between  the  President  and  the  Senate,  the  most  important  treaties 
submitted  by  the  Department  of  State  were  rejected  or  modified 
by  the  Senate.  Again  it  proved  impossible  to  have  a  British  arbi- 
tration treaty  ratified.  The  Hay-Pauncefote  canal  treaty  failed, 
and  this  was  also  the  fate  of  several  important  reciprocity  treaties. 
.  .  .  The  Senate  has  continued  this  critical  attitude  with  the 
result  that  no  important  treaty  has  been  allowed  to  pass  without 
such  modification  as  has  often  entirely  destroyed  its  original  pur- 
pose. The  only  exception  is  the  Treaty  of  Paris,  in  the  formation 
of  which  individual  senators  had  taken  a  prominent  part.  The 
^Newfoundland  reciprocity  treaty  was  ruined  through  the  inter- 
ference of  special  interests." 

In  addition  to  these  instances  of  disagreement,  in  1905  came  the 
disagreement  between  the  Senate  and  Executive  with  reference  to 
the  general  arbitration  treaties  which  had  been  negotiated,  and 
the  irritation  aroused  in  the  Senate  by  the  San  Domingo  protocol 
entered  into  by  the  President  on  January  20,  1D05.  Further  ref- 
erence to  the  principles  involved  in  several  of  these  disagreements 
will  presently  be  made, 

Occasionally  the  Senate  has  turned  down  projects  to  the  appro- 
val of  which  it  has  earlier  committed  itself. 

§  194.  The  "  Recognition  "  of  Foreign  Governments. 

The  recognition  by  the  United  States  of  a  status  of  belligerency, 
or  the  recognition  of  the  sovereignty  and  independence  of  a 
foreign  government  are  political  acts,  not  subject  to  judicial  re- 
view1- and  are  performed  by  the  President.  At  times  the  claim 
has  been  made  that  this  power  of  recognition  is  one  to  be  exer- 
cised at  the  dictation  of  Congress,  but  precedents  are  against  the 

12  See  Chapter  LI. 


462  United  States  Constitutional  Law. 

claim.13  It  is  to  be  presumed,  however,  that  when  the  recognition 
of  a  status  of  belligerency  or  of  the  independence  of  a  revolution- 
ary government  is  likely  to  institute  a  casus  belli  with  some  other 
foreign  power,  the  President  will  be  guided  in  large  measure  by 
the  wishes  of  the  legislative  branch.  Upon  the  other  hand,  it  is 
the  proper  province  of  the  Executive  to  refuse  to  be  guided  by  a 
resolution  on  the  part  of  the  legislature  if,  in  his  judgment,  to 
do  so  would  be  unwise.  The  legislature  may  express  its  wishes 
or  opinions,  but  may  not  command. 

§  195.  The  Power  of  the  Senate  to  Amend  Treaties. 

There  would  seem  to  be  no  question  but  that,  having  the  power 
either  to  approve  or  to  disapprove  an  international  agreement 
negotiated  by  the  President,  the  Senate  has  also  the  power,  when 
disapproving  a  proposed  treaty,  to  state  upon  what  conditions  it 
will  approve;  in  other  words,  to  amend  any  treaty  submitted 
to  it.14  In  so  doing  there  can  be  no  question  but  that  the 
Senate  is  well  within  its  constitutional  right.  Upon  the  other 
hand,  it  is  equally  within  the  province  of  the  Executive  to  consider 
the  amendment  of  a  treaty  by  the  Senate  as  equivalent  to  a  re- 
jection of  it.  When,  therefore,  a  treaty  has  been  amended  in  the 
Senate,  it  is  within  the  President's  power  to  abandon  the  wh.ile 
treaty  project,  or  to  reopen  negotiations  with  the  foreign  country 
or  countries  concerned  with  a  view  to  obtaining  their  consent  to 
the  changes  desired  by  the  Senate,  or,  finally,  to  begin  de  novo  and 
attempt  to  negotiate  an  entirely  new  treaty,  which  he  may  hope 
will  secure  senatorial  approval.  In  case  he  decides  to  follow  the 
second  of  these  courses,  namely,  to  secure  the  approval  of  the 
foreign  country  or  countries  to  the  amendments  to  the  treaty  pro- 
ject made  in  the  Senate,  and  is  successful  in  this,  it  would  seem 

13  See  Senate  Docs.,  Nos.  40  and  50,  54th  Cong.,  2d  Sess.;  Hinds,  Pre- 
cedents of  the  House  of  Representatives,  chapters  XLVIII,  XLIX. 

n  The  approval  or  disapproval  of  a  treaty  project  by  the  Senate  is  often 
spoken  of  as  the  ratification  or  refusal  to  ratify.  Strictly  speaking,  however, 
this  language  is  incorrect,  as  the  ratification  of  a  treaty  is  the  final  act 
performed  by  the  President  by  which  the  agreement  is  declared  in  force, 
between  the  United  States  and  the  foreign  State  or  States  which  are  the 
parties  to  it. 


Foreign   Relations.  463 

that  the  treaty  need  not  again  be  submitted  to  that  body  for  its 
approval,  but  may  be  at  once  promulgated.15 

When,  in  1795,  the  Jay  treaty  was  submitted  to  the  Senate  for 
approval,  that  body  advised  the  President  to  approve  on  condition 
that  certain  specified  changes  were  made  in  it.  These  changes 
having  been  consented  to  by  Great  Britain  the  treaty  was  ratified 
without  again  submitting  the  instrument  to  the  approval  of  the 
Senate.  The  question  as  to  the  propriety  of  this  course  had  been 
submitted  by  Washington  to  the  members  of  his  cabinet  and  up- 
held by  them.  The  same  practice  has  been  followed  in  subse- 
quent cases.  Where,  however,  the  changes  made  in  a  treaty  pro- 
ject have  not  been  specifically  indicated  by  the  Senate  as  desired 
by  that  body,  it  has  been  very  properly  held  that  the  amended 
project  should  be  again  submitted  to  the  Senate  for  its  action 
thereon.16 

The  Senate's  right  to  amend  a  treaty  has  been  directly  upheld 
by  the  Supreme  Court.  In  Haver  v.  Yaker17  the  court  say: 
"  In  this  country  a  treaty  is  something  more  than  a  contract,  for 
the  federal  Constitution  declares  it  to  be  the  law  of  the  land.  If 
so,  before  it  can  become  a  law,  the  Senate,  in  whom  rests  the  au- 
thority to  ratify  or  approve  it,  must  agree  to  it.  But  the  Senate 
are  not  required  to  adopt  or  reject  it  as  a  whole,  but  may  modify 
or  amend  it"  iS  The  approval  of  the  Senate  being  essential  to  the 
validity  of  all  treaties  entered  into  by  the  United  States,19  it  has 
been  held  that  all  protocols,  and  explanations  given  by  the  Execu- 
tive as  to  the  meaning  of  treaty  provisions,  which  have  not  been 
passed  upon  and  approved  by  the  Senate,  are  not  to  be  considered 
as  internationally  binding  upon  the  United  States,  or  enforced  in 
its  courts.  For  this  reason  it  is  not  constitutional  for  the  Presi- 
dent to  insert  in  a  treaty  secret  provisions  which  have  not  been 
approved  by  the  Senate.  Most  of  the  written  constitutions  of 
foreign  Powers  have  specific  prohibitions  with  reference  to  secret 
provisions. 

i5Crandall,  Treaties:  Their  Making  and  Enforcement,  pp.  68  et  seq. 
16  Crandall,  pp.  68  et  seq. 
"9  Wall.  32;  19  L.  ed.  571. 

is  Senator  Lodge  enumerates  sk»ty-eight  treaties  that  were  amended  by 
the  Senate  and  afterward  ratified. 

19  For   qualification    of    this   statement,   see    Chapter   XXXIII. 


4M&  United  States  Constitutional  Law. 

§  196.  Foreign  States  Held  to  a  Knowledge  of  the  Location  of 
Treaty-Making  Powers. 

Generally  speaking,  according  to  rules  of  international  law,  one 
State  is  not  concerned  with,  and,  therefore,  not  required  to  be  cog- 
nizant of,  the  constitutional  law  of  another  State  with  which  it 
has  dealings.  With  respect,  however,  to  the  constitutional  treaty- 
making  powers  of  the  governmental  organs  of  that  State,  other 
States  are  required  to  be  informed; — qui  cum  alio  contrahit.  vet 
est,  eel  debet  esse  nun  ignarns  conditionis  ejus  —  and,  therefore, 
it  is  no  great  ground  of  complaint  on  the  part  of  a  State,  as,  for 
example,  England,  in  whose  Executive  is  exclusively  vested  the 
treaty-making  power,  when  a  treaty  .project  which  has  been  mutu- 
ally agreed  upon  between  the  Executive  of  that  country  and  the 
Executive  of  the  United  States,  fails  of  approval,  or  is  amended 
in  the  Senate.20 

It  would  seem,  however,  that  when  the  American  Senate  amends 
a  treaty,  and  then  formally  ratifies  it  as  amended,  and  returns  it 
to  the  President  for  him  to  submit  to  the  other  nation  concerned, 
there  is  some  ground  for  complaint  that  thereby  such  nation  is 
improperly  placed  in  a  position  where  it  is  called  upon  to  pass 
upon  a  project  which  has  not  been  based  upon  negotiations  be- 
tween the  two  States  in  which  opportunity  has  been  given  to  state 
and  argue  the  merits  upon  both  sides  of  the  project.  In  other 
words,  that  the  onus  of  accepting  or  rejecting  a  completed  project 
is  thereby  improperly  placed  upon  the  treaty-making  organ  of  the 
foreign  State.  This  would  appeal1  to  have  been  the  objection 
made  by  Lord  Lansdowne  in  his  note  of  February  22,  1901,  to 
Lord  Pauneefote,  with  reference  to  the  Hay-Pauncefote  treaty 
which  in  December,  1900,  had  been  amended  and  then  approved 
by  the  Senate.  This  treaty,  it  will  be  remembered,  had  for  its 
aim  the  deunite  determination  of  certain  matters  which  had  been 
covered   by   the   Clayton-Bulwer   treaty,    the   subsisting   force   of 

*•  In  order,  however,  to  avoid  the  possibility  of  a  misunderstanding  and 
consequent  irritation,  it  has  been  a  common,  though  not  uniform,  practice 
to  state  explicitly  in  the  powers  granted  those  who  are  to  negotiate  a  treaty, 
that  their  action,  in  order  to  become  binding  on  the  United  States,  requires 
the  approval  of  the  President  and  the  Senate. 


FoBEIGX     IvELATIOXS.  465 

which  had  been  in  dispute.  The  Senate's  amendment  to  the  new 
arrangement  agreed  upon  between  Secretary  of  State  Kay  and 
Lord  Lansdowne,  was  amended  by  the  Senate  by  the  insertion  of 
the  statement  that  the  Clayton-Bulwer  treaty  was  "  hereby  super- 
seded." Referring  to  this  provision,  Lord  Lansdowne  said: 
"  The  Clayton-Bulwer  treaty  is  an  international  contract  of  un- 
questioned validity-  a  contract,  which,  according  to  well-estab- 
lished international  usage,  ought  not  to  be  abrogated  or  modified 
save  with  the  consent  of  both,  the  parties  to  the  contract.  His 
Majesty's  Government  rind  themselves  confronted  with  a  proposal 
communicated  to  them  by  the  United  States  Government,  without 
any  previous  attempt  to  ascertain  their  views,  for  the  abrogation 
of  the  Clayton-Bulwer  treaty." 

§  197.  Plenary  Powers  of  Ratification. 

Whether  or  not  this  necessity  for  senatorial  approval  to  all 
treaty  projects  renders  it  constitutionally  impossible  for  the 
United  States  to  give  to  diplomatic  agents  full  powers  to  ratify 
treaties  negotiated  by  them  and  thus  render  them  immediately 
effective  without  subsequent  submission  to  the  Senate,  is  doubtful. 
The  point  has  never  been  passed  upon  by  our  courts;  but  it  is 
quite  possible  that  should  a  judicial  pronouncement  upon  this 
point  be  required,  it  would  be  held  that  for  the  Senate  to  commit 
itself  in  advance  to  wliatever  conditions  the  treaty  negotiators 
might  agree  upon,  would  be  the  delegation  of  a  power  prohibited 
by  that  principle  of  our  constitutional  law,  which  declares  that 
a  power  the  exercise  of  which  is  delegated  by  the  Constitution  to 
a  particular  governmental  organ  may  not  be  delegated  by  that 
organ  to  another  department. 

However  this  may  be,  the  Senate  and  the  President  may,  of 
course,  give  to  their  agents  such  powers  and  instructions  as  will 
hold  them  —  the  President  and  the  Senate  —  morally  bound  to 
ratify  what  their  plenipotentiaries  have  agreed  to. 

In  earlier  times  writers  upon  International  Law,  Grotius, 
Pulfendorf  and  Vattel,  for  instance,  held  that  a  State  was  abso- 
lutely bound  by  the  treaties  entered  into  by  its  agents  when  acting 
30 


406  United  States  Constitutional  Law. 

within  the  limits  of  their  instructions.  Later  writers,  however, 
generally  hold  that  this  ratification  may,  for  strong  and  sub- 
stantial reasons,  be  refused.21 

Up  to  1815  the  general  practice  of  the  President  was  to  obtain 
the  approval  of  the  Senate  to  the  appointment  of,  and  to  the  in- 
structions given  to,  commissioners  for  the  negotiation  of  contem- 
plated treaties.  Since  that  time,  however,  this  practice  has  been 
seldom  followed.  This  change  has,  however,  not  escaped  occa- 
sional formal  protest  from  the  Senate. 

After  a  treaty  has  been  signed  by  the  commissioners  appointed 
to  negotiate  it,  or  agreed  upon  between  the  departments  of  State 
of  the  countries  concerned,  there  is  no  constitutional  obligation 
upon  the  President  to  submit  it  to  the  Senate,  and,  even  after 
submission  to  that  body,  he  may  withdraw  it,  as  for  instance  was 
done  by  President  Cleveland  with  reference  to  a  reciprocity  treaty 
with  Spain  which  had  been  sent  to  the  Senate  in  1884  by  Presi- 
dent Arthur.  In  a  like  manner  the  Hawaiian  annexation  treaty 
of  189*3  and  the  Xicaraguan  Canal  Convention  of  1884  were  with- 
drawn "  for  re-examination,"  after  having  been  sent  to  the  Senate. 

Even  after  being  favorably  acted  upon  by  the  Senate,  it  would 
appear  that,  under  certain  circumstances,  the  President  may  re- 
fuse his  ratification.  Thus,  in  1888,  when  China  proposed 
certain  changes  in  an  agreement  with  this  country  which  had 
already  been  approved  by  the  Senate,  the  President  abandoned  the 
entire  project 

2i  Crandall,  pp.  12  et  seq. 


CHAPTER  XXXIII. 

INTERNATIONAL  AGREEMENTS  WHICH  DO  NOT  REQUIRE  THE  AP- 
PROVAL OF  THE  SENATES 

§  198.  International  Agreements  not  Requiring  Approval  by 
Senate. 

As  has  been  seen,  all  treaties  to  which  the  United  States  is  a 
party,  in  order  to  become  legally  binding  upon  the  United  States 
and  enforceable  in  its  courts,  require,  in  some  stage  of  their  nego- 
tiation, the  approval  of  the  Senate  as  manifested  by  a  vote  of  two- 
thirds  of  its  members  present  when  the  approval  is  given.2  Not 
all  agreements  entered  into  by  the  United  States  with  foreign 
powers  are  held  to  be  treaties  in  the  sense  in  which  that  term  is 
used  in  the  treaty  clause  of  the  Constitution.  Such  agreements 
as  are  held  not  to  be  treaties  in  this  sense,  it  has  been  the  practice 
of  the  President,  acting  in  pursuance  of  his  general  powers  as 
Chief  Executive  or  as  authorized  by  congressional  statute,  to  enter 
into  and  promulgate  without  submission  to  the  Senate.  Further- 
more, in  not  a  few  instances  the  Senate  has  itself  expressly  con- 
ferred upon  the  President  the  power  to  contract  with  foreign  pow- 
ers with  reference  to  specified  matters. 

This  power,  then,  of  the  President  to  enter  into  international 
arrangements  free  from  the  necessity  of  obtaining  the  subsequent 
approval  of  the  Senate  may  be  treated  under  the  following  heads : 

1.  His  power  inherent  in  him  as  the  Chief  Executive  and 
commander-in-chief  of  the  army  and  navy, 

i  Upon  this  subject  see  the  pamphlet  entitled  "  International  Agreements 
Without  the  Advice  and  Consent  of  the  Senate,"  by  Mr.  James  F.  Barnett, 
reprinted,  with  additions,  from  the  Yale  Review;  the  article  by  Hon.  J.  B. 
Moore  in  the  Political  Science  Quarterly  for  September,  1905,  entitled 
"Treaties  and  Executive  Agreements;"  and  the  article  by  Mr.  <X  C.  Hyde  in 
the  Grcmbag  for  April,  1905;  entitled  "Agreements  of  the  United  States 
other  than  Treaties." 

2 Only  the  final  vote  of  approval  or  to  postpone  indefinitely  requires  the 
two-thirds  vote.  For  all  other  parliamentary  motions  with  reference  to  a 
treaty,  a  simple  majority  is  sufficient. 

[407] 


468  United  States  Constitutional  Law. 

2.  His  power  as  granted  him  by  statute, 

3.  His  power  as  delegated  to  him  by  the  Senate,  the  co-pos- 
sessor with  him  of  the  treaty-making  power. 

§  1S3.  International  Powers  of  the  President  as  Chief  Executive : 
International  Correspondence. 

International  correspondence  is  exclusively  in  the  hands  of  the 
President,,  or  his  agent,  the  Secretary  of  State.3  Hence  it  is  im- 
proper for  any  international  documents  to  be  addressed  to,  or 
sent  directly  to  the  Senate,  or  for  any  attempt  to  be  made,  in  any 
way,  by  an  agent  of  a  foreign  power  to  influence  directly  the 
action  of  the  Senate  upon  a  treaty  that  is  pending  before  it  or  is 
later  to  be  sent  to  it  for  its  action,  thereupon.  Upon  the  other 
hand,  it  is,  of  course,  improper  for  the  Senate  or  any  other  organ 
of  the  Federal  Government,  by  resolution  or  otherwise,  to  attempt 
to  communicate  with  a  foreign  power  except  through  the  Presi- 
dent. Thus,  when  in  1877  Congress  passed  two  joint  resolutions 
congratulating  the  Argentine  Republic  and  the  Republic  of  Pre- 
toria upon  their  having  established  a  republican  form  of  govern- 
ment, and  directing,  in  the  one  case,  the  Secretary  of  State  to 
acknowledge  the  receipt  of  a  despatch  from  Argentine,  and  in  the 
other  to  communicate  with  Pretoria,  the  President  vetoed  both 
resolutions.4 

By  virtue  of  the  power  exclusively  vested  in  him  to  conduct 
diplomatic  negotiations  between  this  and  foreign  countries,  the 
President  has,,  since  early  years,  entered  into  numerous  agree- 
ments with  foreign  chancellaries  for  the  settlement  of  claims  made 
by  private  American  citizens  against  foreign  governments.5  In  a 
considerable  number  of  cases,  these  claims  have  been  settled  by 

3  Comrmrnicatfons  between  the  States  of  the  Union  and  the  Federal  Govern- 
ment are  made  through  the  Secretary  of  State  and  not  through  the  Presi- 
dent. This  rule  was,  however,  several  times  disregarded  by  President  Eoose- 
xeTt. 

*  Richardson's  Messages  and  Papers  of  the  President,  Yll,  430. 

5  An  especially  interesting  ease  was  that  of  the  Mora  claim.  For  an 
account  of  this  by  Professor  J.  B.  Moore,  see  the  Political  Science  Quarterly, 
XX,  pp.  403  et  seq. 


I:s~TFnxATi<>NAi.  Ate&BEMxwmL  4^9 

means  of  arbitration  agreed  upon  between  the  foreign  offices  -con- 
cerned. After  describing  the  various  instances  of  executive  action 
under  this  head,  Professor  Moore  says :  "  It"  tfcus  appears  that, 
if  we  include  only  the  more  formal  settlements,  there  have  been 
thirty-one  cases  in  which  claims  against  foreign  governments  have 
been  settled  by  executive  agreement,  and  that  twenty-seven  arbi- 
trations have  been  held  under  such  agreements  as  against  nineteen 
under  treaties,  where  the  settlement  embraced  claims  against  the 
foreign  government  alone  and  not  against  the  United  States.6 

In  no  case  lias  the  President  attempted,  without  consulting  the 
Senate,  to  adjust  finally  claims  brought  by  foreigners  against  tbe 
United  States.'  In  no  case,  also,  has  the  President,  by  executive 
action,  attempted  the  settlement  of  claims  set  up  by  the  United 
States  in  its  own  behalf. 

§  200.  Protocols. 

The  term  u  Protocol,"  as  used  in  International  Law,  has  as- 
cribed to  it  several  meanings.  The  two  most  common  of  these 
meanings  are: 

1.  As  describing  the  records  of  tlie  meetings  of  commissioners 
for  tlie  negotiation  of  a  treaty.  These  records,  though,  of  course, 
not  parts  of  the  treaty  finally  entered  into,  are  often  of  value  for 
the  interpretation  of  such  treaty. 

2.  As  describing  an  agreement  reached  between  the  foreign 
offices  of  two  countries,  which  has  been  reduced  to  definite  written 
statement,  but  has  not  been  ratified  as  a  treaty  by  the  States 
parties  to  it.  How  far  such  agreements,  though  not  legally  "bind- 
ing, morally  bind  the  parties  to  them,  depends  upon  the  par- 
ticular circumstances  of  each  case. 

6 Political  Bdenee  Quarterly,  XX,  p.  -114. 

7  In  two  instances  elainu  of  foreigner!  against  the  United  States  were 
submitted  to  arbitral  tribunals  by  executive  agreement,  hut  in  both  instances 
it  was  expressly  provided  that  any  awards  that  might  be  made  shoald  be  a 
claim  not  against  the  United  Stat*-,  but  solely  against  the  estates  of  certain 
American  citizens  whose  estates  were  to  be  adjusted  before  the  same  arbitral 
tribunals.  Vf  Grccnbag,  XVII,  233,  Article  'Agreements  of  the  United 
States  Other  than  Treaties." 


470  United  States  Constitutional  Law. 

The  most  common  use  to  which  protocols  in  this  sense  are  put, 
is  in  fixing  the  general  terms  in  which  a  final  treaty  —  especially 
a  treaty  of  peace  —  is  to  be  negotiated.  A  recent  example  of  this 
is  the  protocol  of  1898  providing  for  the  appointment  of  a  com- 
mission to  negotiate  the  Treaty  of  Peace  with  Spain.8 

The  constitutional  authority  of  the  President  without  consult- 
ing the  Senate  to  enter  into  protocols  of  agreement  as  the  basis 
for  treaties  to  be  negotiated,  is  beyond  question,  and  has  repeat- 
edly been  exercised  without  demur  from  the  Senate.9 

The  protocol  signed  by  the  allies  (the  United  States  being 
among  their  number)  at  Pekin  in  1901  after  the  Boxer  troubles, 
though  in  the  nature  of  a  military  convention,  providing  as  it  did 
for  the  withdrawal  of  the  allied  forces  from  Pekin,  was  yet  prac- 
tically of  a  treaty  character.  It  provided  for  the  payment  of 
indemnities  by  China,  for  an  international  commission  to  receive 
and  distribute  these  indemnities,  the  prohibition  of  the  importa- 
tion into  China  for  two  years  of  arms  and  ammunition,  the  delimi- 
tation of  the  legation  quarters  in  Pekin,  and  for  various  reforms 
and  concessions  on  the  part  of  China.  Commenting  upon  this 
protocol,  Mr.  Barnett  observes:  "  This  case  is  interesting,  be- 
cause it  shows  how  the  force  of  circumstances  compelled  us  to 
adopt  the  European  practice  with  reference  to  an  international 
agreement,  which,  aside  from  the  indemnity  question,  was  almost 
entirely  political  in  character.  As  has  been  pointed  out  above, 
purely  political  treaties  are,  under  constitutional  practice  in  Eu- 
rope, usually  made  by  the  executive  alone.  The  situation  in 
China,  however,  abundantly  justified  President  McKinley  in  not 
submitting  the  protocol  to  the  Senate.  The  remoteness  of  Pekin, 
the  jealousies  between  the  allies,  and  the  shifting  evasive  tactics 
of  the  Chinese  Government,  would  have  made  impossible  any- 
thing but  an  agreement  on  the  spot." 

In  the  case  of  the  Boxer  Protocol,  no  serious  objection  was 
made  to  the  President's  failure  to  adjust  the  questions  involved  by 

8  30  U.  S.  Stat,  at  Large,  1742. 

»For  instances  of  protocols,  see  Butler,  The  Treaty  Making  Power,  II, 
p.  371,  note. 


International  Agreements.  471 

means  of  a  treaty  submitted  to  the  Senate  for  its  approval.  When, 
however,  in  January,  1905,  President  Roosevelt  entered  into  a 
protocol  agreement  with  San  Domingo  for  the  administration  of 
its  customs  with  a  view  to  providing  for  the  adjustment  and 
payment  of  foreign  creditors  of  that  country,  it  was  immediately 
urged,  upon  the  fact  becoming  known,  that  the  action  contem- 
plated was  one  which  could  be  authorized  only  by  a  treaty  wh'.ch 
had  had  the  approval  of  the  Senate.  Though  the  protocol  of  $r4a.a- 
ary  20th  made  no  reference  to  the  Senate's  approval  being  neces- 
sary to  its  validity,  and  contained  the  provision  that  it  was  to  go 
into  effect  on  February  1st,  the  President  disclaimed  the  purpose 
of  entering  into  the  arrangement  without  first  obtaining  tiw)  Sen- 
ate's consent.  The  protocol,  in  amended  form,  expressly  providing 
for  the  Senate's  approval,  was  submitted  to  that  body,  but  upon 
that  body's  failure  to  act  upon  it,  the  President,  acting  upon  hi? 
own  responsibility,  was  able  to  secure,  informally,  substantially 
the  end  aimed  at  in  the  protocol.  A  treaty  governing  the  subject 
was  finally  approved  by  the  Senate  and  ratified  by  the  Bowiiniean 
Government 

§  201.  Modi  Vivendi. 

As  the  term  indicates,  a  modus  vivendi  is  a  temporary  arrange- 
ment entered  into  for  the  purpose  of  regulating  a  matter  of  con- 
flicting interests,  until  a  more  definite  and  permanent  arrangement 
can  be  obtained  in  treaty  form.  Continued  and  unquestioned 
practice  supports  the  doctrine  that  these  modi  vivendi  may  be 
entered  into  by  the  President  without  consulting  the  Senate.10 

§  202.  International  Agreements  Entered  into  by  the  President 
under  His  Military  Powers. 
In  the  exercise  of  his  powers  as  Commander-in-Chief  of  the 
army  and  navy  the  President  of  the  United  States,  from  both 
necessity  and  convenience,  is  often  called  upon  to  enter  into 
arrangements  which  are  of  an  international  character.  These 
conventions  do  not  require  the  approval  of  the  Senate.     A  con- 

io  For  instances  of  modi  vivendi,  see  Butler,  I,  p.  369,  note. 


472  Uxited  States  Constitutional  Law. 

spicuous  example  of  international  agreements  tlras  entered  into 
is  the  protocol  signed  at  Pekin  in  1901,  to  which  reference  has 
already  been  made.  All  protocols  of  agreement  entered  into  fw 
the  purpose  of  furnishing'  a  basis  for  treaties  of  peace,  as  for 
example,  the  Protocol  of  1898  with  Spain,  come  under  this  head. 
So  do  all  conventions  providing  in  time  of  war  for  an  armistice, 
or  the  exchange  of  prisoners,  etc. 

The  President's  military  powers  exist  m  times  of  peace  as 
well  as  during  war.  And  thus,  in  IS  17,  the  President,  without 
obtaining  the  advice  and  consent  of  the  Senate,  was  able,  by  an 
exchange  of  diplomatic  notes,  to  arrange  with  England  regarding 
the  number  of  vessels  of  war  to  be  kept  by  the  two  powers  upon 
the  Great  Lakes.  So  also,  upon  his  own  discretion,  the  President 
is  able  to  send  American  vessels  of  war  to  whatever  ports  he  sees 
fit,  whether  for  the  purpose  of  friendly  visit,  of  furnishing  pro- 
tection to  American  citizens  or  their  property,  or  of  making  a 
"  demonstration  "  in  order  to  obtain  desired  action  on  the  part  of 
the  State  thus  overawed. 

§  203.  International  Agreements  Entered  Into,  or  Action  Taken 
by  the  President,  by  Virtue  of  Authority  Granted  Him 
by  Treaties  Previously  Ratified. 
The  preceding  sections  have  considered  the  power  of  the  Presi- 
dent to  enter  into  international  agreements,  and  to  take  action 
with  reference  to  matters  of  an  international  character,  by  virtue 
of  powers  inherent  in  him  either  as  the  Chief  Executive  of  the 
Xation  or  as  constitutional  Commander-in-Chief  of  the  army  and 
navy.     We  turn  now  to  a  consideration  of  treaty-making  powers 
which  may  constitutionally  be  exercised  by  him,  without  in  each 
instance  obtaining  the  advice  and  consent  of  the  Senate,  by  virtue 
of  general  authority  given  to  him  in  treaties  previously  entered 
into  and  approved  by  the  Senate. 

This  question,  which  is  one  of  both  political  expediency  and  of 
constitutional  law,  received  thorough  discussion  both  in  Congress 
and  the  press  in  connection  with  the  general  treaties  of  arbitra- 
tion which  were  agreed  upon  in  1904  and  1905  between  Secretary 


Intke^atioxal  Ageeemexts.  473 

of  State  Hay  in  behalf  of  the  United  States,  and  the  foreign  min- 
isters of  various  other  countries. 

At  The  Hague  Conference  in  1899  an  attempt  was  made  to 
provide  for  obligatory  arbitration  in  certain  cases.  This  failed, 
but  by  Article  XVI  it  was  declared  that:  "In  questions  of  a 
judicial  character,  and  especially  in  questions  regarding  the 
interpretation  and  application  of  international  treaties  or  con- 
ventions, arbitration  is  recognized  by  the  Signatory  Powers  as  the 
most  efficacious  and  at  the  same  time  the  most  equitable  method 
of  deciding  controversies  which  nave  not  been  settled  by  diplo- 
matic methods;"  and  article  XX  provided  for  the  establishment 
of  u  a  permanent  Court  of  Arbitration,  accessible  at  all  times,  and 
acting,  unless  otherwise  stipulated  by  the  parties,  in  accordance 
with  rules  of  procedure  included  in  the  present  convention,"  to 
which  resort  might  be  had  for  the  settlement  of  disputes  which 
diplomatic  methods  had  failed  to  adjust  In  addition  to  these 
provisions,  by  Article  XIX  of  The  Hague  Convention  the  Signa- 
t<  iv  Powers  reserved  the  right  to  enter  into  general  or  particu- 
lar treaties  providing  for  obligatory  arbitration  with  reference  to 
such  subjects  as  they  might  think  advisable. 

In  1903.  by  a  treaty  signed  at  London,  October  14th,  France 
and  England  agreed  in  the  future  to  submit  to  The  Hague  Tribu- 
nal certain  specified  classes  of  questions.  Article  II  provided 
that  "  Dans  cluique  c&s  partic  alter ,  leg  Hautes  Parlies  ('<>n- 
tractantes,  avant  tie  s  addresser  a  la  Cour  permananie  d'arbitrage, 
siqiieront  un  compromiis  special,  determinant  I'objet  du  Utige, 
I'entendue  des  pouvoirs  des  arbiires."  This  Anglo-French  treaty 
beeame  the  model  for  a  number  of  treaties  between  other  Euro- 
pean nations,  as  well  as  for  ten  arbitration  treaties  negotiated 
by  Mr.  Hay  in  1904-1905,  and  submitted  to  the  Senate  for  its 
approval. 

The  fiacgt  two  articles  of  these  treaty  projects  read  as  follows: 

•'Article  I.  Differences  which  may  arise  of  legal  nature,  or 
relating  to  the  interpretation  of  treaties  existing  between  the  two 
•  •••ntractiiii:  partie-.  and  which  it  may  not  have  been  possible  to 
settle  by  diplomacy,  shall  be  referred  to  the  permanent  court  of 


474  United  States  Constitutional  Law. 

arbitration  established  at  The  Hague  by  the  convention  of  the 
29th  of  July,  1899,  provided,  nevertheless,  that  they  do  not  affect 
the  vital  interests,  the  independence  or  the  honor  of  the  two  con- 
tracting States,  and  do  not  concern  the  interests  of  third  parties." 

"Article  II.  In  Bach  individual  case  the  high  contracting 
parties,  before  appealing  to  the  permanent  court  of  arbitration, 
shall  conclude  a  special  agreement  defining  clearly  the  matter  in 
dispute  and  the  scope  of  the  powers  of  the  arbitrators,  and  fixing 
the  periods  for  the  formation  of  the  arbitral  tribunal  and  the 
several  stages  of  the  procedure." 

In  the  Senate  objection  developed  to  the  provision  that  the 
definition  of  the  matter  in  dispute  and  the  fixing  of  the  powers 
of  the  arbitrators  should  be  "  by  special  agreements,"  which,  the 
terminology  would  imply,  might  be  entered  into,  in  each  case,  by 
the  President  without  consulting  the  Senate.  That  body,  there- 
fore, amended  the  treaty  projects  by  substituting  the  word 
"  Treaty  "  for  the  word  "Agreement."  The  effect  of  this  change 
was,  of  course,  to  make  it  necessary  to  obtain  the  approval  and 
consent  of  the  Senate  to  each  and  every  proposition  that  might 
thereafter  arise  for  submitting  a  dispute  to  arbitration,  even  when 
such  propositions  were  clearly  within  the  scope  of  Article  I  of  the 
treaties  which  Secretary  Hay  had  negotiated.  President  Roose- 
velt holding  that  thus,  in  any  event,  a  special  treaty  would  have 
to  be  negotiated  and  approved  by  the  Senate  before  a  matter 
could  be  submitted  to  arbitration,  declared  that  the  ratification  of 
the  so-called  general  arbitration  treaties  which  the  Senate  had 
amended,  would  achieve  nothing,  and  declined  to  submit  them, 
as  thus  amended,  to  the  foreign  countries  concerned,  for  their 
approval,  and  the  whole  project  was,  for  the  time  being  at  least, 
abandoned. 

With  the  policy  or  impolicy  of  the  Senate's  refusal  explicitly 
to  endow  the  Executive  with  the  authority  by  u  special  agree- 
ments "  to  submit  to  arbitration  before  The  Hague  tribunal  of 
matters  coming  within  the  terms  of  the  ten  arbitration  treaties 
negotiated  by  .Secretary  Hay,  a  treatise  on  Constitutional  Law  is 
not  concerned.     As  regards,  however,  the  point  made  by  some  of 


IxTKKXATloNAi.   AcKKEMKXTS.  475 

the  Senators  that  the  delegation  of  such  authority  to  the  President 
would  not  be  constitutional,  it  may  be  said  that  both  judicial 
precedents  and  previous  practice  of  the  Senate  itself  support  in 
principle  the  treaties  in  question. 

There  have  been  numerous  instances  in  which  the  Senate  has 
approved  treaties  providing  for  the  submission  of  specific  matters 
to  arbitration,  leaving  it  to  the  President  to  determine  exactly  the 
form  and  scope  of  the  matter  to  be  arbitrated  and  to  appoint  the 
arbitrators.  Professor  J.  B.  Moore,  in  the  article  to  which  refer- 
ence has  already  been  made,  enumerates  thirty-nine  instances  in 
which  provision  has  thus  been  made  for  the  settlement  of  pecu- 
niary claims.  Twenty  of  these  were  claims  against  foreign  gov- 
ernments; fourteen  were  claims  against  both  governments,  and 
five  against  the  United  States  alone.11 

Notwithstanding  the  defeat  of  the  Hay  treaties  in  1905,  the 
President  still  has,  by  virtue  of  The  Hague  Convention  4tself,  a 
considerable  power  upon  his  own  initiative  of  referring  many 
matters  of  international  dispute  to  the  Permanent  Court  of  Arbi- 
tration at  The  Hague  or  to  arbitral  commissions  specially  created, 
as  provided  for  in  that  instrument.  As  we  have  already  seen,  the 
President,  by  reason  of  his  control  of  all  diplomatic  relations,  has 
considerable  power  to  refer  to  arbitration  matters  of  dispute 
which  he  is  unable  to  settle  through  the  ordinary  diplomatic  chan- 
nels. And,  in  the  exercise  of  this  discretion,  he  can,  of  course, 
refer  claims,  especially  those  of  a  pecuniary  nature,  and  ques- 
tions of  treaty  interpretation  to  the  tribunals  established  or  pro- 
vided for  by  The  Hague  Convention.  Thus,  without  consulting 
with  the  Senate,  he  referred  the  Pious  Fund  controversy  with 
Mexico  to  The  Hague  Tribunal.12 

Aside  from  any  other  treaty  agreements,  there  seems  to  be 
some  question  as  to  the  extent  of  the  President's  powers  under 

11  Political  Science  Quarterly,  XX,  403. 

12  It  is  to  be  observed,  bowever,  that  at  the  time  the  Pious  Fund  matter 
was,  by  the  President,  with  the  consent  of  Mexico,  referred  to  The  Hague 
Tribunal  there  was  a  subsisting  treaty  between  this  country  and  Mexico  — 
a  treaty  which,  of  course,  had  had  the  approval  of  the  Senate  —  providing  for 
arbitration  of  disputes  of  the  character  of  the  Pious  Fund. 


i~C>  Uxited  States  Constitutional  Law. 

The  Hague  Convention.  Ex-Secretary  of  State  John  W.  Foster 
has  said:  ''I  apprehend  that  should  our  government  decide  to 
refer  any  dispute  with  a  foreign  government  to  The  Hague  Tri- 
bunal, President  Roosevelt,  or  whoever  should  succeed  him,  would 
enter  into  a  convention  with  the  foreign  government,  very  care- 
fully setting  forth  the  question  to  be  arbitrated,  and  submit  that 
convention  to  the  Senate  for  its  advice  and  consent,  if  I  read 
the  Constitution  of  the  United  States  and  The  Hague  Convention 
aright,  such  would  be  the  only  course  permissible  by  those  instru- 
ments," '13 

To  much  the  same  effect  is  the  declaration  of  ]\£r.  F.  W.  Holls, 
who  was  the  Secretary  to  The  Hague  Conferenca  He  says : 
"  The  appointment  of  a  Commission  of  Inquiry  having  no  further 
necessary  consequences  than  the  providing  for  each  party's  share 
of  necessary  expenses,  would  seem  to  be  within  the  ordinary 
diplomatic  functions  of  the  President  and  the  Department  of 
State  by  memorandum  or  protocol,  whereas  an  agreement  to  sub- 
mit any  question  to  a  court  of  arbitration,  the  decision  to  be 
binding  upon  the  parties,  must  necessarily  take  the  form  of  a 
treaty  requiring  the  constitutional  co-operation  of  the  Senate."  u 

Upon  the  other  hand.  Judge  Simeon  E.  Baldwin  gives  as  his 
opinion  that:  *  The  Hague  Convention,  when  ratified  by  the 
Senate,  became  thus  a  standing  warrant,  or,  so  to  speak,  a  power 
of  attorney,  from  the  United  States  to  the  President,  to  submit 
such  international  controversies  as  he  might  think  fit  to  the 
ultimate  decision  of  the  International  Court  of  Arbitration."  15 

§  204.  International  Agreements  Entered  Into,  or  Action  Taken 
by  the  President,  by  Virtue  of  Authority  Granted  Him 
by  Congressional  Statute. 

In  many  instances  Congress  has,  by  statute,  authorized  the 
Executive  to  perform  acts  of  an  international  character,  that 
is,  acts  with  which  other  countries  have  heen  directly  concerned. 

13  Yale  Law  Journal,  XL  p.  69. 

i*The  P-eace  Conference  at  The  Hague,  p.  216. 

15  Yale  Review,  IX,  p.  415. 


IXTLIUXATI'XAL  Agueemen  477 

Under  such  authorization,  numerous  international  postal  arrange- 
ments have  been  entered  into.  Thus  by  act  of  1S72,  Congress 
declared  that  ~  for  the  purpose  of  making  better  postal  arrange 
ments  -with  foreign  countries,"  the  Postmaster-General,  acting 
under  the  advice  of  the  President,  might  "  negotiate  and  conclude 
postal  treaties." 

In  a  similar  manner,  that  is,  under  congressional  sanction,  the 
President  has  negotiated  and  entered  into  agreements  with 
foreign  countries  with  reference  to  copyrights  and  trademarks. 

Various  other  congressional  acts  of  this  character,  as,  for  ex- 
ample, that  of  1901,  whereby  the  President  was  authorized  to 
lease  coaling  stations  from  Cuba,  might  be  mentioned,  but  the 
most  important  of  these  and  the  only  ones  which  need  discussion 
are  those  authorizing  action  with  reference  to  the  tariff  la\*3. 

Since  the  first  years  under  the  Constitution,  Congress  has  pur- 
sued the  policy  of  giving  to  the  President  a  considerable  execu- 
tive discretion  in  the  application  and  enforcement  of  its  laws 
governing  commercial  intercourse  with  foreign  countries.  Of 
this  character  was  the  Embargo  Act  of  1794,  the  act  of  1799 
governing  commercial  intercourse  with  France,  the  Xon-importa- 
tion  Act  of  1S00,  the  Non-intercourse  Acts  of  1S09-  and  1810, 
the  acts  of  1S15  and  1834  as  to  tonnage  and  other  dues,  the  act 
of  1S00  as  to  the  non-importation  of  cattle  and  hides,  and  the 
acts  of  1845,  1>21,  l>i'-.  186$  1886,  and  1S97  with  reference 
to  the  suspension  of  discriminating  duties.16  All  of  these  acts 
provided  that  whether  or  not  they  should  go  into  effect  should  be 
at  the  discretion  of  the  President. 

!';.  section  3  of  the  act  of  1890  (the  so-called  McKinley  Act) 
it  was  provided :  u  That  with  a  view  to  secure  reciprocal  trade 
wirh  countries  producing  the  following  articles,  and  for  this  pur- 
pose, on  and  after  the  first  day  of  January,  eighteen  hundred  and 
ninety-two,  whenever  and  so  often  as  the  President  shall  be  satis- 
fied that  the  government  of  any  country  producing  and  exporting 
M£ars>  molasses,  coffee,  tea,  and  hides,  raw  and  nnctrred,  or  any 
of  such  article s,  imposes  duties  or  other  exactions,  upon  the  agri- 

*C/.  J.  B.  Moore  in  Political  Science  Monthly,  XX,  p.  396. 


478  United  States  Constitutional  Law. 

cultural  or  other  products  of  the  United  States,  which  in  view 
of  the  free  introduction  of  such  sugar,  molasses,  coffee,  tea  and 
hides  into  the  United  States,  he  may  deem  to  be  reciprocally 
unequal  and  unreasonable,  he  shall  have  the  power  and  it  shall 
be  his  duty  to  suspend,  by  proclamation  to  that  effect,  the  provi- 
sions of  this  act  relating  to  the  free  introduction  of  such  sugar, 
molasses,  coffee,  tea  and  hides,  the  production  of  such  country, 
for  such  time  as  he  shall  deem  just,  and  in  such  case  during  such 
suspension  duties  shall  be  levied,  collected  and  paid  upon  sugar, 
molasses,  coffee,  tea  and  hides,  the  product  of  or  exported  from 
such  designated  country,  as  follows." 

This  section  had  been  put  in  the  McKinley  Act  with  a  view 
to  securing  reciprocal  commercial  agreements  with  foreign 
powers,  and  ten  such  tariff  arrangements  were  effected  by  the 
President  by  means  of  an  exchange  of  diplomatic  notes  simply. 
These  agreements  remained  in  force  until  the  enactment  in  1894 
of  the  Wilson-Gorman  Act. 

The  constitutionality  of  this  action  under  the  act  of  1890  was 
contested  on  the  ground  that  it  amounted  to  a  delegation  by  Con- 
gress to  the  President  of  a  portion  of  its  legislative  power;  but 
the  Supreme  Court  in  Field  v.  Clark17  held  the  provision  valid.18 

By  the  third  section  of  the  Tariff  Act  of  1897  (the  Dingley 
Act),  the  President  was  authorized  to  enter  into  reciprocity  agree- 
ments with  foreign  countries  with  respect  to  certain  enumerated 
articles,  whereby  in  return  for  concessions  obtained  from  other 
countries,  equivalent  concessions  were  to  be  granted  by  the  United 
States.  Under  the  authority  thus  granted  a  number  of  reciproc- 
ity agreements  were  negotiated  and  promulgated  by  the  President. 

Section  4  of  this  act  of  1897  also  provided  for  reciprocity 
treaties  which  should  be  approved  by  Congress.  This  section 
will  receive  consideration  in  the  next  section.19 

»  143  U.  S.  649 ;   12  Sup.  Ct.  Rep.  495 ;  36  L.  ed.  294. 

18  See  Chapter  LXV  in  which  the  delegation  of  legislative  power  is  discussed. 

19  There  have  been  some  instances  of  international  agreements  entered  into 
by  the  President  without  the  advice  and  consent  of  the  Senate,  and  with- 
out authorization  by  some  previous  treaty  or  statute,  which  cannot  be  grouped 
under   any   one    of    the   preceding  heads   mentioned   in   this   chapter.     Thus, 


International  Agreements.  479 

§  205.  Extradition. 

The  greatly  preponderant  weight  of  opinion  is  that,  in  the 
absence  of  authority  expressly  given  him  by  treaty  or  statute, 
the  President  has  not  the  constitutional  right  to  extradite  to  a 
foreign  country  a  fugitive  to  this  country.20  The  single  instance 
in  which  the  President  has  extradited  without  such  authority 
expressly  conferred  upon  him  is  the  surrender  to  Spain  by  Lin- 
coln in  1864  of  one  Arguelles. 

Whether  or  not  Congress  has  the  power  by  statute  to  authorize 
the  President  to  extradite  fugitives  to  countries  with  which  the 
United  States  has  no  subsisting  treaty  upon  the  subject  is  not 
certain,  as  there  has  been  no  instance  of  the  exercise  of  such 
power.  Reasoning  upon  general  principles,  however,  there  would 
seem  to  be  no  constitutional  objection  to  such  legislation.21 

for  example,  in  1850  Great  Britain  ceded  to  the  United  States  a  reef  in 
Lake  Erie  upon  condition  that  the  United  States  would  engage  to  erect  there- 
upon a  lighthouse  and  maintain  it,  and  agree  to  erect  no  fortifications  there- 
upon. This  engagement  the  President  made  without  consulting  the  Senate, 
and  the  cession  was  made,  and  later,  Congress  having  appropriated  the  funds, 
a  lighthouse  was  constructed. 

2c  Of,  Moore,  Extradition. 

2i  C'/.  Butler,  §  435. 

• 


CHAPTER  XXIV. 

CONGRESSIONAL    LEGISLATION    FOR    THE    ENFORCEMENT    OF 

TREATIES. 

§  206.  Treaties  Cannot  Appropriate  Money. 

Though  all  treaties,  as  declared  by  the  Constitution,  are  parts  of 
the  supreme  law  of  the  land,  they  are  not  always,  in  whole  or  in 
part,  self-exeeutory ;  but  require,  in  order  to  be  put  into  lull 
force  and  effect,  ancillary  legislative  action.  Especially  is  this 
legislative  assistance  required  when  an  expenditure  of  money  is 
called  for.  The  treaty-making  power  is  able  to  obligate 
United  States  internationally  to  the  payment  of  sums  of  money. 
but  is  not  able  itself  to  appropriate  from  the  United  States  treas- 
ury the  amounts  called,  for,  or  compel  the  legislature  to  provide 
for  their  payment. 

The  question  as  to  the  obligation  of  Congress,  morally  or 
legally,  to  appropriate  moneys,  the  pajioent  of  which  by  the 
United  States  is  called  for  by  agreement  entered  inro  with  foreign 
countries  by  the  treaty-making  power,  arose  in  1790  in  connec- 
tion with  Jay's  treaty,  which  had  been  negotiated  in  1794  and 
ratified  in  1795.  The  treaty  having  been  communicated  to  the 
House  of  Representatives  in  order  that  the  moneys  called  for  by 
it  might  be  appropriated,  Gallatin  and  other  members  urged  that 
the  House,  before  passing  the  appropriation  asked  fur,  was 
entitled  to  see  all  the  papers  in  the  executive  department  relating 
to  the  treaty  in  order  that  it  might  then  pass  upon  the  question 
of  its  merits,  and  refuse  or  consent  to  the  appropriation  as  should 
to  the  House  seem  fit.  A  resolution  calling  upon  the  President 
for  the  papers  was  adopted,  but  Washington,  not  wishing  to  create 
a  precedent,  refused  obedience  to  it,  claiming  that  the  House, 
being  no  part  of  the  treaty-making  power,  was  not  entitled,  of 
right,  to  see  the  documents  in  question. 

Jefferson,  in  a  letter  to  Monroe,  stated1  the  position  as  follows: 

1  Works,  IV,  134. 

[4S0] 


TkK.xTIKS    AM)    CONGRESS.  4:81 

"  We  conceive  the  constitutional  doctrine  to  be  that  though  the 
President  and  Senate  have  the  general  power  of  making  treaties, 
vet  wherever  they  include  in  a  treaty  matters  confided  by  the  Con- 
stitution to  the  three  branches  of  legislature,  an  aet  of  legislation 
will  be  requisite  to  confirm  these  articles,  and  that  the  House  of 
Representatives,  as  one  branch  of  the  legislature,  are  perfectly 
free  to  pass  the  act  or  to  refuse  it,  governing  themselves  by  their 
own  judgment  whether  it  is  for  the  good  of  their  constituents  to 
let  the  treaty  go  into  effect  or  not.  On  the  precedent  now  to  be 
set  will  depend  the  future  construction  of  our  Constitution,  and 
whether  the  powers  of  legislation  shall  be  transferred  from  the 
President,  Senate,  and  House  of  Representatives,  to  the  President 
and  Senate,  and  Piamingo,  or  any  other  Indian,  Algerine  or 
other  chief." 

Washington,  in  his  special  message  refusing  compliance  with 
the  request  of  the  House's  resolution,  said:  "Having  been  a 
member  of  the  general  convention,  and  knowing  the  principles  on 
which  the  Constitution  was  formed,  I  have  ever  entertained  but 
one  opinion  on  this  subject;  and  from  the  first  establishment  of 
the  government  to  this  moment  my  conduct  has  exemplified  that 
opinion,  that  the  power  of  making  treaties  is  exclusively  vested 
in  the  President,  by  and  with  the  advice  and  consent  of  the 
Senate,  provided  two-thirds  of  the  Senators  present  concur;  and 
that  every  treaty  so  made  and  promulaat<  d  thenceforward  became 
the  law  of  the  land.  It  is  thus  that  the  treaty-making  power  has 
bun  understood  by  foreign  nations,  and  in  all  the  treaties  made 
with  them,  we  have  declared,  and  they  have  believed,  that,  when 
ratified  by  the  President,  with  the  advice  and  consent  of  the 
Senate,  they  become  obligatory.  .  .  .  As,  therefore,  it  is  per- 
fectly clear  to  my  understanding  that  the  assent  of  the  Hotise  of 
Representatives  is  not  necessary  to  the  validity  of  a  treaty;  as  the 
treaty  with  Great  Britain  exhibits  in  itself  all  the  objects  requir- 
ing legislative  provision,  and  on  these  the  papers  called  for  can 
throw  no  light;  and  as  it  is  essential  to  the  due  administration  of 
the  government  that  the  boundaries  fixed  by  the  Constitution 
between  the  different  departments  should  be  preserved,  a  just 
31 


482  United  States  Constitutional  Law. 

regard  to  the  Constitution  and  to  the  duty  of  my  office,  under 
all  the  circumstances  of  this  case,  forbids  a  compliance  with  your 
request." 

After  some  discussion,  the  House  receded  from  its  position 
and  passed  the  laws  and  appropriations  necessary  for  carrying 
the  treaty  into  effect. 

When  the  question  of  purchasing  Louisiana  came  up,  Jeffer- 
son, in  conformity  with  his  views  stated  in  the  letter  to  Monroe, 
at  first  proposed  to  submit  the  treaty  to  both  Houses  of  Congress. 
He  later  decided,  however,  to.  submit  it  to  the  Senate  only,  but 
informed  the  House  that  as  soon  as  the  treaty  should  be  approved 
by  the  Senate,  it  would  be  submitted  to  Congress  "  for  the  exer- 
cise of  their  functions  as  to  those  conditions  which  are  within 
the  powers  vested  by  the  Constitution  in  Congress."  And,  after 
the  treaty  had  been  approved  and  ratified,  he  sent  it  to  Congress 
saying :  "  You  will  observe  that  certain  important  conditions  can- 
not be  carried  into  execution  but  with  the  aid  of  the  legislature." 
These  legislative  measures  were  enacted,  but  without  any  explicit 
statement  of  the  principle  which  the  House  had  urged  in  1796.2 

The  question  was  again  discussed  in  connection  with  the  appro- 
priation called  for  in  the  treaty  of  1867  purchasing  Alaska  from 
Russia.  After  some  debate,  the  House  appropriated  the  money, 
but  prefaced  the  act  with  the  assertion  that  "  the  subjects  em- 
braced in  the  treaty  are  among  those  which  by  the  Constitution 
are  submitted  to  Congress  and  over  which  Congress  has  juris- 
diction; and  for  these  reasons  it  is  necessary  that  the  consent  of 
Congress  should  be  given  to  the  said  stipulations,  before  the  same 
can  have  full  force  and  effect." 

The  Senate  objected  to  this  statement,  and,  after  having 
referred  the  matter  to  a  conference  committee,  the  following  com- 
promise declaration  was  agreed  upon :  "  Whereas,  the  President 
of  the  United  States  has  entered  into  a  treaty  with  the  Emperor 
of  Russia,  .  .  .  and  whereas  said  stipulations  cannot  be  car- 
ried into  full  force  and  effect,  except  by  legislation  to  which  the 

2C/.  Moore,  International  Law  Digest,  V,  §  759. 


Treaties  axd  Congress.  483 

consent  of  both  Houses  of  Congress  is  necessary;  therefore  be  it 
resolved,  etc."3 

What  has  been  said  regarding  the  power  of  Congress  to  refuse 
to  appropriate  moneys  for  the  payment  of  which  the  United 
States  has  been  obligated  by  the  treaty-making  power  applies 
with  equal  force  to  whatever  other  legislation  may  be  required 
in  order  to  put  a  treaty  into  full  force  and  effect. 

Though,  as  is  seen  from  the  foregoing,  it  cannot  be  said  that 
precedent  has  established  the  doctrine  one  way  or  the  other,  it  is 
quite  clear  that  whatever  moral  obligation,  as  a  matter  of  good 
faith,  or  principle  of  expediency,  may  urge  Congress  to  pass 
appropriation  or  other  laws  required  for  putting  into  full  force 
and  effect  agreements  entered  into  by  the  treaty-making  power, 
there  is  no  constitutional  means  by  which,  in  case  of  refusal,  such 
legislation  may  be  compelled ;  nor  is  there  any  constitutional  right 
on  the  part  of  the  executive  or  judicial  branches  of  the  Federal 
Government  to  supply  the  lacking  legislation.  A  treaty  is  by  the 
Constitution  declared  to  be  a  law  of  the  land,  and  where  its  pro- 
visions operate  directly  upon  a  subject,  it  may  be  enforced  as  such 
without  further  legislative  sanction.  But  where  the  treaty  is  not 
thus  directly  executory,  the  executive  and  judicial  departments 
must  wait  until  Congress  has  enacted  Ihe  necessary  legislation. 
Justice  McLean  declares:  '"A  treaty  is  the  supreme  law  of  the 
land  in  respect  of  such  matters  only  as  the  treaty-making  power, 
without  the  aid  of  Congress,  can  carry  into  effect.  Where  a 
treaty  stipulates  for  the  payment  of  money  for  which  an  appro- 
priation is  required,  it  is  not  operative  in  the  sense  of  the  Con- 
stitution. Every  foreign  government  may  lj§  presumed  to  know 
that  so  far  as  the  treaty  stipulates  to  pay  money  the  legislative 
sanction  is  required."4 

In  Foster  v.  Xeilson5  Chief  Justice  Marshall  with  reference 
to  the  legal  character  of  a  treaty,  as  fixed  by  United  States  Con- 
stitutional Law,  says:    "Our  Constitution  declares  a  treaty  to 

3  For  other  discussions  in  Congress  upon  this  subject,  see  Butler,  Chapter  X. 
*: McLean.  Constitutional  Law,  p.  347.     As  to  whether  the  last  statement  of 
McLean  is  correct  or  not,  see  post,  Section  221. 
6  2  Pet.  253;  7  L.  ed.  415. 


4S4:  United  States  Constitutional  Law. 

be  the  law  of  the  lancL  It  is,  consequently,  to  be  regarded  in 
courts  of  justice  as  equivalent  to  an  act  of  the  legislature,  when- 
ever it  ouerates  of  itself  without  aid  of  any  legislative  provision. 
But  when  the  terms  of  the  stipulation  import  a  contract  —  when 
either  of  the  parties  engages  to  perforin  a  particular  act  —  the 
treaty  addresses  itself  to  the  political,  not  to  the  judicial  depart- 
ment; and  the  legislature  must  execute  the  contract  before  it 
can  became  a  rule  for  the  court."6 

§  207.  Congress  May  by  Statute  Abrogate  Treaties. 

As  has  been  saidr  treaties,  so  far  as  they  are  self-executory,  are 
the  supreme  law  of  the  land,  and  in  this  respect  rest  upon  a 
plane  of  equality  with  acts  of  Congress.  But  upon  no  higher 
■■  plane.  Besultiug  from  this,  it  has  been  held  in  a  number  of  well 
considered,  cases  that  an  act  of  Congress  operates  to  repeal  or 
annul  .prior  treaty  provisions  inconsistent  with  it. 

In  Edye  v.  Robertson,'  after  reviewing  various  cases,  the  court 
say :  "A  treaty,  then,  is  a-  law  of  the  land  as  an  act  of  Congress 
iay  whenever  its  provisions  present  a  rule  by  which  the  rights  of 
the  private  citizen  or  subject  may  be  determined.  And  when 
snck  rigkts  are  of  a  nature  to  be  enforced  in  a  court  of  justice, 
that  court  resorts  to  the  tf eaty  for  a  rule  of  decision  for  the  case 
before  it,  as  it  would  to  a  statute.  .  .  .  But  even  in  this 
aspect  of  the  case,,  there  is  nothing  in  this  law  which  makes  if 
LrrepeaJable  or  unchangeable.  The  Constitution  gives  it  no 
superiority  over  an  act  of  Congress  in  this  respect  which  may  be 
repealed  or  modified  by  an  act  of  a  later  date.  Xor  is  there  any- 
thing in  its  essentiaLcharaeter  or  in  the  branches  of  the  govern- 

*JSe«.  als»  United  States  v.  Pereheman,  7  Pet.  51;  8  L.  ed.  604.  and  Garcia  v. 
Lee,  12  Pet.  511;  9  L.  ed.  1176.  "  If  Congress  .  .  .  does  not  choose  to  carry 
out  a  treaty  «r  if  it  prefers  to  violate  one,  citizens  of  the  United  States,  or 
even  subjects  of  foreign  powers,  seeking  relief  in  our  courts,  may  not,  in  that 
maimer,  be  able  to  obtain  redress  for  evils  arising  from  the  failure  of  the  gov- 
emnnent  of  the  United  States  to  comply  with  treaty  stipulations.  The  courts 
are  bound  by  the  laws  enacted  by  Congress,  and  cannot  declare  them  either 
unconstitutional  or  inoperative  because  they  violate  national  contracts  or 
natfomir  good  faith  and  honor."     Butler.  I,  §§  451,  315. 

'Headmoney  Cases,  112  U.  S.  580;  5  Sup.  Ct.  Rep.  247;  28  L.  ed.  798. 


Trkaties  a xi)  Congress.  485 

merit  by  which  the  treaty  is  made,  which  gives  it  this  superior 
sanctity.  ...  In  short  we  are  of  the  opinion  that,  so  far  as 
a  treaty  made  by  the  United  States  with  any  foreign  nation  can 
become  the  subject  of  judicial  cognizance  in  the  courts  of  this 
country,  it  is  subject  to  such  acts  of  Congress  as  Congress  may 
pass  for  its  enforcement,  modification  or  repeal." 

The  doctrine  thus  unqualifiedly  stated  has  been  repeatedly 
followed  in  later  cases.8  Especially  strong  is  the  Chinese  Exclu- 
sion Case,  Chae  Chan  Ping  v.  United  States.9 

§  208.  Whether  the  Treaty-Making  Power  may  Modify  or  Re- 
peal Laws  Enacted  by  Congress.30 

To  Congress  is  given  the  power  by  the  Constitution  to  legis- 
late with  reference  to  certain  matters.  We  have  already  learned 
that  by  statute  the  President  has  been  authorized  in  a  number  of 
instances  to  enter  into  international  agreements  for  the  regulation 
of  certain  matters  within  the  legislations  control  of  Congress.  W-e 
have  now  to  examine  whether,  without  congressional  direction  or 
permission,  it  is  competent  for  the  treaty-making  power  to  regulate 
a  matter  which  it  is  within  the  legislative  power  of  Congress  to 
control;  or,  by  international  agreements,  to  alter  arrangements 
which  Congress  has  by  statute  already  established. 

That  the  treaty-making  power  extends  to  subjects  within  the 
ordinary  legislative  powers  of  Congress  there  can  be  no  doubt, 

8  Butler,  op.  cit.  II,  86,  cites  the  following  cases  in  which  acts  supersed- 
ing prior  treaties  in  conllict  with  them  have  been  sustained  by  the  Supreme 
Court:  United  States  v.  McBratney,  104  U.  S.  621;  26  L,  ed.  $69;  C  hew 
Heong  v.  United  States,  112  U.  S.  536;  5  Sup.  Ct.  Rep.  255;  28  L.  ed.  770; 
Ward  v.  Race  Horse,  163  U.  S.  504;  16  Sup.  Ct.  Rep.  1076;  41  L.  ed.  244; 
Draper  v.  United  States,  164  U.  S.  240;  17  Sup.  Ct.  Rep.  lu7;  41  L.  ed.  4!»; 
Thomas  v  Gay,  16!)  U.  S.  264;  18  Sup.  Ct  Rep.  340;  42  L.  ed.  740;  Fong 
Yue  Ting  v.  United  State*,  14!)  U.  S.  508;  13  Sup.  Ct.  Rep.  1016;  37  L.  ed. 
MM;  (  hinese  Exclusion  Cases,  130  U-  S.  581;  9  Sup.  Ct.  Rep.  623;  52  L.  ed. 
1068;  La  Abra  Silver  Mining  Co.  v.  United  States,  175  U.  S.  423;  BO  Sup. 
Ct.  Rep.  168;  44  L.  ed.  223;  United  States  v.  Gue  Lim,  176  U  S.  459 ;  20 
Sup.  Ct.  Rep.  415;  44  L.  ed.  544. 

•  ISO  U.  S.  981;  !»  Sup.  (  t.  Rep.  R3;  32  L.  ed.  1068. 

io  For  a  very  full  account  of  discussions  of  this  subject  in  Congress,  see 
Hinds'  Precedents  of  the  House  of  ti<  pim* ■ntnticts,  Chapters  XLVIII  and 
XL1X. 


486  United  States  Constitutional  Law. 

That  is  to  say,  the  treaty-making  power  is  fully  competent  to 
enter  into  agreements  with  foreign  powers  in  respect  to  those 
matters  which  are  binding  internationally  upon  the  United  States. 
The  question  here  to  be  considered  is,  however,  whether  these 
international  compacts  become,  so  far  as  they  are  self-executing, 
immediately  binding  municipally,  that  is,  may  be  enforced  as 
law  in  our  courts.  The  Supreme  Court  has,  in  a  number  of 
instances,  declared  that  treaties  and  acts  of  Congress  stand,  as 
law,  upon  exactly  equal  planes,  and,  therefore,  that  the  later 
treaty  operates  to  supersede  the  earlier  law,  exactly,  as  we  have 
seen,  the  later  law  has  the  effect  of  abrogating  a  prior  incon- 
sistent treaty.  Thus  in  Cherokee  Tobacco  Case11  the  court  say: 
"  The  effect  of  treaties  and  acts  of  Congress,  when  in  conflict, 
is  not  settled  by  the  Constitution.  But  the  question  is  rot 
involved  in  any  doubt  as  to  its  proper  solution.  A  treaty  may 
supersede  a  .prior  act  of  Congress  (Foster  v.  Xeilson,  2  Pet.  2oo ; 
7  L.  ed.  415)  and  an  act  of  Congress  may  supersede  a  prior 
treaty.  (Taylor  v.  Morton,  2  Curt.  O.  C.  454;  The  'Clinton 
Bridge,  1  Woly.  155.)" 

In  United  States  v.  Lee  Yen  Tai12  the  court  declare:  ft  That 
it  was  competent  for  the  two  countries  by  treaty  to  have  super- 
seded a  prior  act  of  Congress  on  the  same  subject  is  not  to  be 
doubted;  for  otherwise  the  declaration  in  the  Constitution  that 
a  treaty,  concluded  in  the  mode  prescribed  by  that  instrument, 
shall  be  the  supreme  law  of  the  land,  would  not  have  due  effect. 
As  Congress  may  by  statute  abrogate,  so  far  at  least  as  this 
country  is  concerned,  a  treaty  previously  made  by  the  United 
States  with  another  nation,  so  the  United  States  may  by  treaty 
supersede  a  prior  act  of  Congress  on  the  same  subject.  In  Foster 
v.  Neilson  (2  Pet  253;  7  L.  ed.  415),  it  was  said  that  a  treaty 
was  '  to  be  regarded  in  courts  of  justice  as  equivalent  to  an  act 
of  the  legislature,  whenever  it  operates  of  itself  without  the  aid 
of  any  legislative  provision.'  In  the  case  of  The  Cherokee 
Tobacco  (11  Wall.  616),  this  court  said  '  a  treaty  may  supersede 

"11  Wall/616;  20  L.  ed.  227. 

"185  U.   S.  213;   22   Sup.  Ct.  Rep.  629;   46  L.   ed.  878. 


Treaties  and  Congress.  487 

a  prior  act  of  Congress  and  an  act  of  Congress  may  supersede  a 
prior  treaty.'  So  in  the  Head  Money  Cases  (112  U.  S.  580;  5 
Sup.  Ct  Rep.  217;  28  L.  ed.  798)  this  court  said:  '  So  far  as  a 
treaty  made  by  the  United  States  with  any  foreign  nation  can 
become  the  subject  of  judicial  cognizance  in  the  courts  of  this 
country,  it  is  subject  to  such  acts  as  Congress  may  pass  for  its 
enforcement,  modification  or  repeal.'  Again,  in  Whitney  v. 
Robertson  (124  U.  S.  190;  8  Sup.  Ct.  Rep.  456;  31  L.  ed.  386) ; 
'  By  the  Constitution  a  treaty  is  placed  on  the  same  footing,  and 
made  of  like  obligation,  with  an  act  of.  legislation.  Both  are 
declared  by  that  instrument  to  be  the  supreme  law  of  the  land, 
and  no  superior  efficacy  is  given  to  either  over  the  other.  When 
the  two  relate  to  the  same  subject,  the  courts  will  always  endeavor 
to  construe  them  so  as  to  give  effect  to  both  if  that  can  be  done 
without  violating  the  language  of  either;  but  if  the  two  are  incon- 
sistent, the  one  last  in  date  will  control  the  other,  provided  always 
that  the  stipulation  of  the  treaty  on  the  subject  is  self-executing.' 
(See  also  Taylor  v.  Morton,  2  Curt.  C.  C.  454,  Fed.  Cas.  No. 
13,799 ;  Clinton  Bridge  Case,  Woolw.  155,  Fed.  Cas.  No.  2,900 ; 
Ropes  v.  Clinch,  8  Blatchf .  304,  Fed,  Cas.  No.  12,041 ;  2  Story, 
Const.  §  1838.)  Nevertheless,  the  purpose  by  statute  to  abrogate 
a  treaty  or  any  designated  part  of  a  treaty,  or  the  purpose  by 
treaty  to  supersede  the  whole  or  a  part  of  an  act  of  Congress, 
must  not  be  lightly  assumed,  but  must  appear  clearly  and  dis- 
tinctly from  the  words  used  in  the  statute  or  in  the  treaty"13 

"See  also  Johnson  v.  Browne,  205  U.  6.  309;  27  Sup.  Ct  Rep.  539; 
51  L.  ed.  S16. 

Moore,  in  his  Digest  of  International  Law  (V,  370),  says:  "A  treaty 
assuming  it  to  be  made  conformably  to  the  Constitution  in  substance  and 
form,  has  the  legal  effect  of  repealing  under  the  general  conditions  of  the 
legal  doctrine  that  'leges  posteriores  priores  contrarias  abrogant,'  all  pre- 
existing federal  law  in  conflict  with  it,  whether  unwritten  as  law  of  nations, 
of  admiralty,  and  common  law,  or  written  as  acts  of  Congress.  A  treaty, 
though  complete  in  itself,  and  the  unquestioned  law  of  the  land,  may  be 
inexecutable  without  the  aid  of  an  act  of  Congress.  But  it  is  the  constitu- 
tional duty  of  Congress  to  pass  the  requisite  laws.  But  the  need  of  further 
legislation,  however,  does  not  affect  the  question  of  the  legal  force  of  the 
treaty  per  se.  Cashing,  At  Gen.  1854  (6  Op.  291).  See  also  Akerman,  At. 
Gen.  1870   (13  Op.  854). 


488  Uxited  States  Constitutional  Law. 

In  fact,  however,  there  have  been  few  (the  writer  is  not  certain 
that  there  have  been  any)  instances  in  which  a  treaty  incon- 
sistent with  a  prior  act  of  Congress  has  been  given  full  force 
and  effect  as  law  in  this  country  without  the  assent  of  Congress. 
There  may  indeed  have  been  cases  in  which,  by  treaty,  certain 
action  has  been  taken  without  reference  to  existing  federal  laws, 
as,  -for  example,  where  by  treaty  certain  populations  have  been 
collectively  naturalized,  but  such  treaty  action  has  not  operated 
to  repeal  or  annul  the  existing  law  upon  the  subject.  Further- 
more, with  specific  reference  to  commercial  arrangements  with 
foreign  powers,  Congress  has  explicitly  denied  that  a  treaty  can 
operate  to  modify  the  arrangements  which  it,  by  statute,  has  pro- 
vided, and,  in  actual  practice,  Congress  in  every  instance  suc- 
ceeded in  maintaining  this  point. 

§  209.  Treaties  and  Revenue  Acts. 

There  would  seem  to  be  certainly  one  exception  to  the  rule 
that  the  later  treaty  abrogates  the  prior  inconsistent  statute,  and 
this  is  in  reference  to  acts  for  raising  revenue.  The  Constitution 
expressly  declares  that  "  all  bills  for  raising  revenue  shall  origi- 
nate in  the  House  of  Representatives."14  Strictly  interpreted 
this  provision  might  be  held  to  apply  only  to  "  bills,"  that  is  to 
propositions  for  a  statute,  but  in  practice  the  spirit  of  the  clause 
has  been  followed  rather  than  its  exact  letter. 

In  IS  16  the  question  received  an  especially  careful  discussion 
in  Congress  with  reference  to  a  convention  which  the  treaty- 
making  power  had  entered  into  in  1815  with  Great  Britain.  The 
house  passed  a  bill  specifically  enacting  in  detail  the  provision 
of  the  treaty,  with  the  evident  purpose  of  making  it  plain  that 

See  Davis  v.  Concordia,  9  How.  280;  13  L.  ed.  138;  Fellows  v.  Blacksmith, 
19  How.  366;  15  L.  ed.  684;  The  Clinton  Bridge,  1  Woolworth,  155;  Kull 
v.  Kull,  37  Hun   (N.  Y.),  476. 

The  provision^  of  the  convention  with  China,  proclaimed  December  8,  1894, 
wore  self -executing,  so  as  to  modify  or  repeal  a  prior  statute  with  which 
they  were  in  conflict.  Knox,  At.  Gen.,  Oct.  10,  1901  (23  Op.  545)  approving 
opinions  of  Conrad  Act.  At.  Gen.,  May  20,  1896  (21  Op.  347)  and  Harmon, 
At.  Gen.,  May  26,  1896  (21  Op.  357)." 

"Art.  I,  Sec.  VII,  CI.  1. 


Treaties  asd  Coxokess.  4S0 

without  such  legislative  enactment  the  provisions  would  be  •with- 
out legal  force.  The  Senate  refused  its  concurrence  upon  the 
ground  that  the  treaty  was  self-operative  and,  therefore,  that  the 
legislative  approval  should  be  only  declarators*  in  form.  After 
reference  to  a  committee  of  conference,  a  bill  was  agreed  upon 
between  the  two  Houses,  based  upon  the  principle,  conceded  by 
the  Senate,  that  "  whilst  some  treaties  might  not  require,  others 
may  require,  legislative  provision  to  carry  them  into  effect;  that 
the  decision  of  the  question,  how  far  such  provision  was  neces- 
sary, must  he  founded  npon  the  peculiar  character  of  the  treaty 
itself."15 

This  was  clearly  a  compromise  agreement,  but  later  practice 
has  served  to  strengthen  the  position  of  the  House  and  it  is 
believed  tliat  there  has  been  no  instance  in  which  a  treaty  has, 
without  legislative  permission,  been  allowed  to  repeal  or  annul 
existing  revenue  laws. 

In  1S4G,  the  Senate  Committee  on  Foreign  Affairs,  to  whieh 
had  been  referred  a  reciprocity  treaty  negotiated  by  Air.  Wheaton, 
reported  adversely  in  the  following  words :  "  The  committee 
.  .  .  are  not  prepared  to  sanction  so  large  an  innovation  upon 
ancient  and  uniform  practice  in  respect  of  the  department  of 
government  by  which  duties  on  imports  shall  be  imposed.  The 
convention  which  has  been  submitted  to  the  Senate  changes  duties 
which  have  been  laid  by  law.  It  changes  them  ex  direcio  and  by 
its  own  vigor,  or  it  engages  the  faith  of  the  nation  and  the  faith 
of  the  legislature  through  which  the  nation  acts  to  make  the 
change.  In  cither  aspect  it  is  the  President  and  Senate  wJio,  by 
the  instrumentality  of  negotiation,  repeal  or  materially  vary  regu- 
lations of  commerce  and  laws  of  revenue  which  Congress  had 
ordained,  jluie  than  this,  the  executive  department,  by  the  same 
instrumentality  of  negotiations,  places  it  beyond  the  power  of 
Congress  to  exceed  the  stipulated  maximum  of  import  duties  for 
at  least  three  years,  whatever  exigency  may  intervene  to  require 
it.  In  the  judgment  of  the  committee  the  legislature  is  the 
department  of  government  by  which  commerce  should  be  regu- 

■  Mooro's  Int.  Law  Digest,  V,  223. 


490  United  States  Constitutional  Law. 

lated  and  laws  of  revenue  be  passed.  The  Constitution,  in  terms, 
communicates  the  power  to  regulate  commerce  and  to  impose 
duties  to  that  department."  It  communicates  it,  in  terms,  to  no 
other.  "Without  engaging  at  all  in  examination  of  the  extent, 
limits,  and  objects  of  the  power  to  make  treaties,  the  committee 
believes  that  the  general  rule  of  our  system  is  indisputably  that 
the  control  of  trade  and  the  functions  of  taxing  belong,  without 
abridgement  or  participation,  to  Congress.  They  infer  this  from 
the  language  of  the  Constitution,  from  the  nature  and  principles 
of  our  Government,  from  the  theory  of  republican  liberty  itself, 
from  the  unvaried  practice,  evidencing  the  universal  belief  of  all, 
in  all  periods  and  all  parties  and  opinions.  They  think,  too,  that, 
as  the  general  rule,  the  representatives  of  the  people,  sitting  in 
their  legislative  capacity,  with  open  doors,  under  the  eye  of  the 
country,  communicating  freely  with  their  constituents,  may 
exercise  this  power  more  intelligently,  more  discreetly,  may 
acquire  more  accurate  and  more  minute  information  concerning 
the  employments  and  the  interests  on  which  this  description  of 
measures  will  press,  and  may  better  discern  what  true  policy 
prescribes  and  rejects  than  is  within  the  competence  of  the  execu- 
tive department  of  the  Government.  To  follow,  not  to  lead;  to 
fulfil,  not  to  ordain,  the  law;  to  carry  into  effect,  by  negotiation 
and  compact  with  foreign  governments,  the  legislative  will,  when 
it  has  been  announced,  upon  the  great  subjects  of  trade  and 
revenue;  not  to  interpose  with  controlling  influence;  not  to  go 
forward  with  too  ambitious  enterprise  —  these  seem  to  the  com- 
mittee to  be  the  appropriate  functions  of  the  Executive."16 

16  Compilation  of  Reports  of  the  Committee  on  Foreign  Relations,  VIII,  36. 
With  reference  to  this  report,  Mr.  Calhoun,  then  Secretary  of  State,  wrote  to 
Mr.  Wheaton,  "  If  this  be  the  true  view  of  the  treaty-making  power  it  may 
be  truly  said  that  its  exercise  has  been  one  continual  series  of  habitual  and 
uninterrupted  infringements  of  the  Constitution."  He  then  continued :  "  From 
the  beginning  and  throughout  the  whole  existence  of  the  Federal  Government, 
it  [the  treaty-making  power]  has  been  exercised  constantly  on  commerce, 
navigation,  and  other  delegated  powers,  to  the  almost  entire  exclusion  of 
the  reserved,  which,  from  their  nature,  rarely  ever  come  into  question  between 
us  and  other  nations.  The  treaty-making  power  has,  indeed,  been  regarded 
to  be   so  comprehensive   as   to   embrace,   with   few  exceptions,   all   questions 


Treaties  axd  Congress.  491 

In  the  reply  of  Secretary  Calhoun  to  the  report  of  the  Senate 
committee,  Calhoun  asserted  that  from  the  beginning  of  the  gov- 
ernment it  had  been  the  practice  of  the  treaty-making  power  to 
compact  regarding  matters  within  the  legislative  powers  of  Con- 
gress. It  will  be  observed,  however,  that  neither  the  report,  nor 
the  reply  of  Calhoun  bear  upon  the  point  we  are  now  considering, 
namely,  whether,  when  a  treaty  is  entered  into  providing  for  the 
regulation  of  a  matter  writhin  the  ordinary  legislative  control  of 
Congress,  that  treaty  before  it  may  be  given  full  force  and  effect 
in  this  country  as  law,  requires  congressional  approval. 

After  an  account  of  the  practice  of  the  government  and  of  dis- 
cussions of  the  subject  in  Congress,  Mr.  Crandall,  writing  in 
1904,  says:  "From  this  historical  review  it  appears  that,  what- 
ever may  be  the  ipso  facto  effect  of  the  treaty  stipulations,  entered 
into  by  the  President  and  Senate,  upon  prior  inconsistent  revenue 
laws,  not  only  has  the  House  uniformly  insisted  upon,  but  the 
Senate  has  acquiesced  in,  their  execution  by  Congress;  that  in 
case  of  proposed  extensive  modifications  a  clause  has  been  inserted 
in  the  treaty  by  which  its  operation  is  expressly  made  depend- 
ent upon  the  action  of  Congress;  and  that  in  the  recent  Cuban 
treaty  such  a  clause  was  inserted  on  the  initiative  of  the 
Senate."17 

It  is  to  be  observed,  before  leaving  this  subject,  that  in  no  case 
has  the  treaty-making  power,  whatever  its  actual  concessions,  ever 
admitted  in  full  terms  its  inability  to  fix  as  law  matters  which 

that  can  possibly  arise  between  us  and  other  nations,  and  which  can  only 
be  adjusted  by  their  mutual  consent,  whether  the  subject-matter  be  comprised 
among  the  delegated  or  the  reserved  powers.  So  far,  indeed,  is  it  from 
being  true,  as  the  report  supposes,  that  the  mere  fact  of  a  power  being 
delegated  to  Congress  excludes  it  from  being  the  subject  of  the  treaty  stipu- 
lations, that  even  its  exclusive  delegation,  if  we  may  judge  from  the  habitual 
practice  of  the  government,  does  not  —  of  which  the  power  of  appropriating 
money  affords  a  striking  example.  It  is  expressly  and  exclusively  delegated 
to  Congress,  and  yet  scarcely  a  treaty  has  been  made  of  any  importance 
which  does  not  stipulate  for  the  payment  of  money.  No  objection  has  ever 
been  made  en  this  account.  The  only  question  ever  raised  in  reference  to 
it  is  whether  Congress  has  not  unlimited  discretion  to  grant  or  withhold 
the  Appropriation."  Moore's  Digest  of  Inttrtintiunal  Law,  V,  164. 
i"  '1 rrativs  ami  Trcity  Making,  p.  145. 


492  United  States  Constitutional  Law. 

are  within  the  legislative  powers  of  Congress.  Thus  in  19C2, 
Senator  Cullom  emphatically  asserted  that  (July  with  reference 
to  the  appropriation  of  money  is  legislative  assistance  needed  in 
order  that  treaties  may  receive  acceptance  as  law  in  our  courts.18 
It  is  to  be  remarked,  however,  that  in  Bertram  v.  Robertson'9 
and  Whitney  v.  Robertson,2'  though  the  point  is  not  expressly 
discussed,  it  would  seem  that  the  court  impliedly  held  that  a 
treaty  might  modify  revenue  laws,  for  fn  these  cases  the  effect 
of  treaties  upon  existing  tariff  laws  is  considered  without  a  sug- 
gestion that  the  inquiry  is  an  unnecessary  one  because  of  the 
inability  of  the  treaty  power  to  modify  such  statutes. 

18  C'/.  Butler,  I,  457. 

"122  U.  S.  116;   7  Sup.  Ct.  Rep.  1115;   30  L.  ed.  1118. 

20  124  U.  S.  190;  8  Sup.  Ct.  Rep.  456;  21  L.  ed.  386. 


CHAPTER  XXXV. 

THE   CONSTITUTIONAL   EXTENT  OF  THE  TREATY-MAKING   POWER. 

§  210.  Treaty-Making  Power  Granted  Without  Express  Limita- 
tions. 

The  treaty-making  power  is  granted  in  the  Constitution  with- 
out any  express  limitations  as  to  the  subjects  to  which  it  may 
relate.  And  all  treaties,  without  qualification,  are  declared  to 
be  the  supreme  law  of  the  land,  "  anything  in  the  Constitution 
or  laws  of  any  State  to  the  contrary  notwithstanding."  If,  then, 
there  are  any  limitations  to  its  extent,  they  must  be  found 
inherent  in  the  nature  of  the  treaties  themselves,  or  implied  in 
other  clauses  of  the  Constitution  or  in  the  very  nature  of  the 
polity  which  that  instrument  is  designed  to  create  and  maintain. 

§  211.  Implied  Limitations. 

Xo  treaty  has  ever  been  held  unconstitutional  in  any  court, 
federal  or  state,  in  the  United  States.  That  there  are,  however, 
limits,  despite  the  fact  that  in  no  case  has  there  arisen  the  neces- 
sity for  applying  them  in  a  court  of  law,  would  appear  beyond 
question.  From  the  early  years  of  the  present  Government  to 
the  decision  of  the  Insular  Cases  in  1901,  the  Supreme  Court 
has,  upon  frequent  occasions,  stated,  not  only  in  general  terms, 
but  with  reference  to  specific  matters,  that  there  are  limits  to 
the  subjects  that  may,  by  treaty,  be  made  the  supreme  law  of 
the  land.  In  Xew  Orleans  v.  United  States1  speaking  with 
reference  to  the  succession  of  the  United  States  Government  to 
the  French  Government  in  Louisiana,  the  court  said:  "This 
succession  did  not  authorize  the  United  States  to  exercise  preroga- 
tives of  sovereignty  not  consistent  with  the  Constitution  of 
the  United  States."     In  Pollard's  Lessee  v.  Hagan2  the  court 

1  10  Pet.  GG2;   9  L.  ed.  573. 

2  3  How.  212;  11  L.  ed.  565. 

[493] 


494  United  States  Constitutional  Law. 

said :  "  It  cannot  be  admitted  that  the  King  of  Spain  could  by 
treaty  or  otherwise  impart  to  the  United  States  any  of  his  royal 
prerogatives,  and  much  less  can  it  be  admitted  that  they  have 
capacity  to  receive  or  power  to  exercise  them."  And,  later  on 
in  the  same  opinion :  "  The  court  denies  the  faculty  of  the 
Federal  Government  to  add  to  its  powers  by  treaty."  In  the 
Cherokee  Tobacco  Case3  the  opinion  declares :  "  It  need  hardly 
be  said  that  a  treaty  cannot  change  the  Constitution,  or  be  held 
valid  if  it  be  in  violation  of  that  instrument.  This  results  from 
the  nature  and  fundamental  principles  of  our  government." 

In  De  Geofroy  v.  Riggs4  Justice  Field  declares :  "  The  treaty 
power,  as  expressed  in  the  Constitution,  is  in  terms  unlimited 
except  by  those  restraints  wThich  are  found  in  that  instrument 
against  the  action  of  the  government  or  of  its  departments,  and 
those  arising  from  the  nature  of  the  government  and  of  that  of 
the  States.  It  would  not  be  contended  that  it  extends  so  far  as 
to  authorize  what  the  Constitution  forbids,  or  a  change  in  the 
character  of  the  government  or  in  that  of  one  of  the  States,  or  a 
cession  of  any  portion  of  the  territory  of  the  latter,  without  its 
consent.  (Fort  Leavenworth  Eailroad  Co.  v.  Lowe,  114  U.  S. 
525,  5  Sup.  Ct.  Rep.  995;  29  L.  ed.  264.)  But  with  these  ex- 
ceptions, it  is  not  perceived  that  there  is  any  limit  to  the  questions 
which  can  be  adjusted  touching  any  matter  which  is  properly 
the  subject  of  negotiation  with  a  foreign  country.  (Ware  v. 
Hylton,  3  Dall.  193 ;  1  L.  ed.  568;  Chirac  v.  Chirac,  2  Wheat 
259;  4  L.  ed.  234;  Hauenstein  v.  Lynham,  100  U.  S.  483;  25  L. 
ed.  628;  8  Opinions  Attys.  Gen.  417;  The  People  v.  Gerke,  5 
California  381.)" 

In  Downes  v.  Bidwell5  four  of  the  majority  justices  in  their 
opinion  deny  the  authority  of  the  treaty-making  power  to  "  in- 
corporate "  annexed  territory  into  the  United  States.  And  the 
minority  declare  that  "  a  treaty  which  undertook  to  take  away 

3  11  Wall.  616;  20  L.  ed.  227. 

4  133  U.  S.  258 ;  10  Sup.  Ct.  Rep.  295 ;  33  L.  ed.  642. 
6  182  U.  S.  244;  21  Sup.  Ct.  Rep.  770;  45  L.  ed.  1088. 


Constitutional  Treaty-Making  Power.  495 

■what  the  Constitution  secured,  or  to  enlarge  the  federal  jurisdic- 
tion, would  be  simply  void."  6 

These  dicta  of  the  Supreme  Court  that  have  been  quoted  are 
really  obiter  in  that  in  no  case  was  a  treaty  provision  held  void. 
However,  the  statement  being  so  often  and  so  positively  asserted 
it  may  be  taken  for  granted  that  there  are  constitutional  limits 
to  the  treaty-making  power,  and  that  when  these  limits  are  over- 
stepped, the  courts  will  interpose  their  veto. 

§  212.  The  Treaty-Making  Power  and  the  Reserved  Rights  of 
the  States. 

The  supremacy  of  a  federal  treaty  over  a  conflicting  state  law, 
with  reference  to  matters  not  reserved  to  the  States,  has  not  been 
questioned  since  the  time  it  was  established  that  a  federal  statute, 
enacted  within  either  the  concurrent  or  exclusive  constitutional 

6  For  additional  declarations  by  the  Supreme  Court  that  treaties  are  neces- 
sarily subordinate  to  the  Constitution,  see  Ware  v.  Hylton,  3  Dall.  199;  1 
L.  ed.  568;  United  States  v.  The  Peggy,  1  Cr.  103;  2  L.  ed.  49;  Lattimer  v. 
Potest,  14  Pet.  4;  10  L.  ed.  328;  Doe  v.  Braden,  16  How.  635;  14  L.  ed. 
1090;  Thomas  v.  Gay,  169  U.  S.  264;  18  Sup.  C't.  Rep.  340;  42  L.  ed.  740. 
In  the  Wong  Kim  Ark  case,  the  minority  point  out  that  the  effect  of  the  de- 
cision of  the  majority  is  to  limit  the  treaty-making  power  to  prevent  children 
of  resident  aliens  becoming  citizens  of  the  United  States. 

Calhoun,  in  his  Discourse  on  the  Constitution  and  Government  of  the  United 
States,  says:  "It  [the  treaty-making  power]  is  limited  by  all  the  provisions 
of  the  Constitution  which  inhibit  certain  acts  from  being  done  by  the 
government,  or  any  of  its  departments ;  of  which  description  there  are  many. 
It  is  also  limited  by  such  provisions  of  the  Constitution  as  direct  certain  acts 
to  be  done  in  a  particular  way  and  which  prohibit  the  contrary,  of  which 
a  striking  example  is  to  be  found  in  that  which  declares  that  '  no  money 
shall  be  drawn  from  the  Treasury  but  in  consequence  of  appropriations  to  be 
made  by  law.'  This  not  only  imposes  an  important  restriction  on  the  power, 
but  gives  to  Congress  as  the  law-making  power,  and  to  the  House  of  Repre- 
sentatives as  a  portion  of  Congress,  the  right  to  withhold  appropriation's; 
and,  thereby,  an  important  .control  over  the  treaty-making  power  whenever 
money  is  required  to  carry  a  treaty  into  effect;  which  is  usually  the  case, 
especially  in  reference  to  those  of  much  importance.  There  still  remains 
another,  and  more  important  limitation,  but  of  a  more  general  and  indefinite 
character.  It  can  enter  into  no  stipulation  calculated  to  change  the  char- 
acter of  the  government;  or  to  do  that  which  can  only  be  done  by  the 
constitution-making  power ;  or  which  is  inconsistent  with  the  nature  and 
structure  of  the  government."     I  Works,  203. 


490  United  States   Constitutional  Law. 

competency  of  Congress,  operates  to  nullify  all  inconsistent  state 
legislation.  In  this  respect,  as  the  Constitution  expressly  declare-. 
treaties  and  acts  of  Congress  are  upon  precisely  the  same  footing. 

In  Ware  v.  Hylton,7  deeided  in  1790,  Justice  Chase  say-: 
'*■  There  can  be  no  limitation  on  the  power  of  the  people  of 
United  States.  By  their  authority  the  state  constitutions  were 
made,  and  by  their  authority  the  Constitution  of  the  United 
States  was  established ;  and  they  had  the  power  to  change  or 
abolish  the  state  constitutions,  or  to  make  them  yield  to  the  Gen- 
eral Government  and  to  treaties  made  by  their  authority.  A 
treaty  cannot  be  the  supreme  law  of  the  land,  that  is,  of  all  the 
United  States,  if  any  act  of  a  state  legislature  can  stand  in  its 
way.  If  the  constitution  of  a  State  (which  is  the  fundamental 
law  of  the  State,  and  paramount  to  its  legislature)  must  gire  way 
to  a  treaty,  and  fall  before  it;  can  it  be  questioned  whether  the 
less  power,  an  act  of  the  state  legislature,  must  not  be  prostrate  \ 
It  is  the  declared  will  of  the  people  of  the  United  States  that 
every  treaty  made  by  the  authority  of  the  United  States  shall  be 
superior  to  the  constitution  and  laws  of  any  individual  State;  and 
their  will  alone  is  to  decide.  If  a  law  of  a  State  contrary  to  a 
treaty  is  not  void,  but  voidable  only  by  a  repeal  or  nullification 
of  a  state  legislature,  this  certain  consequence  follows:  that  the 
will  of  a  small  part  of  the  United  States  may  control  or  defeat 
the  will  oi  the  whole.  The  people  of  America  have  been  pleased 
to  declare,  that  all  treaties  made  before  the  establishment  of  the 
national  Constitution,  or  laws  of  any  of  the  States,  contrary  bo 
a  treaty,  shall 'be  disregarded." 

In  Fairfax  v.  Hunter,8  Chirac  v.  Chirac,9  Hauenstein  v.  Lyn- 
ham,10  and  other  cases,  the  doctrine  declared  in  "Ware  v.  Hylton 
was  approved  and  applied. 

The  attempt  has  been  made  to  detract  from  the  force  of  Chase's 
doctrine  as  declared  in  Ware  v.  Hylton,  by  emphasizing  the  fact 

-"''       N^ _____ 

t  3  Dali.  109 :   1  L.  ed.  568. 

8  7  Cr.  603 ;  3L  ed.  453. 

9  2  Wh.  259;  4  L.  ed.  234. 

10  100  U.  S.  483;   25   L.  ed.  628. 


Constitutional  Tijeaty-Makixg  Power.  497 

that  in  that  case  the  treaty  in  question  was  one  which  had  been 
originally  entered  into  under  the  Confederation,  that  is,  at  a 
time  when  the  States  were  severally  sovereign,  and  that,  there- 
fore, it  was  a  treaty  to  which  the  States  may  be  said  to  have  •in- 
dividually assented.  There  would  not,  however,  seem  to  be  much 
force  in  this,  for  if,  after  the  adoption  of  the  Constitution,  the 
treaty  in  question  could  be  considered  in  any  way  as  still  an  in- 
strument deriving  its  validity  from  the  consent  of  the  State,  it 
could  have  been  abrogated  by  subsequent  state  action,  but  this, 
of  course,  was  expressly  denied  by  the  court  in  Ware  v.  Hylton. 
The  truth  is  that  the  Constitution  puts  treaties,  made  and  to  be 
made,  upon  exactly  the  same  footing,  and  in  the  later  cases  which 
are  cited  above,  the  doctrine  of  Ware  v.  Hylton  is  considered  as 
controlling  with  reference  to  treaties  made  after  the  adoption  of 
the  Constitution. 

It  may,  then,  be  considered  as  established  that  a  treaty  en- 
tered into  by  the  Federal  Government  with  respect  to  a  matter 
within  the  federal  jurisdiction  is  supreme  over  a  conflicting  state 
law.  This  leads  to  the  question  whether,  by  an  exercise  of  the 
treaty-making  power,  the  Federal  Government  may  regulate  mat- 
ters within  the  States  which  it  may  not  control  by  act  of  Con- 
gress, and  if,  in  this  respect,  the  treaty-making  power  is  broader 
than  the  legislative,  in  what  respects,  and  to  what  extent,  it  is 
broader. 

§  213.  Judicial  Dicta  that  Reserved  Rights  of  the  States  May 
not  Be  Infringed. 

Upon  this  point  the  declarations  of  the  Supreme  Court  are  not 
completely  satisfactory.  In  various  of  its  opinions  this  tribunal 
lias  explicitly  asserted  that  the  rights  reserved  by  the  Constitution 
from  the  control  of  the  other  departments  of  the  Federal  Govern- 
ment may  not  be  infringed  by  its  treaty-making  power. 

In  Prevost  v.  Greenaux11  the  court  say:  "That  a  treaty  i-  no 
more  the  supreme  law  of  the  land  than  is  an  act  of  Congress  is 

n  1!)  How.  1;  15  L.  ed.  572. 
32 


498  United  States  Constitutional  Law. 

shown  by  the  fact  that  an  act  of  Congress  vacates  pro  tanto  a  prior- 
inconsistent  treaty.  "Whenever,  therefore,  an  act  of  Congress 
would  be  unconstitutional,  as  invading  the  reserved  rights  of  the 
States,  a  treaty  to  the  same  effect  would  be  unconstitutional." 

In  the  License  Cases12  Justice  Daniel,  dissenting,  declared: 
"  This  provision  of  the'  Constitution,  it  is  to  be  feared,  is  some- 
times applied  or  expounded  without  those  qualifications  which 
the  character  of  the  parties  to  that  instrument,  and  its  adaptation 
to  the  purposes  for  which  it  was  created,  necessarily  imply. 
Every  power  delegated  to  the  Federal  Government  must  be  ex- 
pounded in  coincidence  with  a  perfect  right  in  the  States  to  all 
that  they  have  not  delegated ;  in  coincidence,  too,  with  the  pos- 
session of  every  power  and  right  necessary  for  their  existence  and 
preservation ;  for  it  is  impossible  to  believe  that  these  ever  were 
in  intention  or  in  fact,  ceded  to  the  General  Government.  Laws  of 
the  United  States,  in-order  to  be  binding,  must  be  within  the  legiti- 
mate powers  vested  by  the  Constitution.  Treaties,  to  be  valid, 
must  be  made  within  the  scope  of  the  same  powers ;  for  there  can 
be  no  '  authority  of  the  United  States '  save  what  is  derived  medi- 
ately or  immediately,  and  regularly  and  legitimately,  from  the 
Constitution.  A  treaty,  no  more  than  an  ordinary  statute,  can 
arbitrarily  cede  away  any  one  right  of  a  State  or  of  any  citizen  of 
a  State.  In  cases  of  alleged  conflict  between  a  law  of  a  State  and 
the  Constitution  or  a  statute  of  the  United  States,  this  court  must 
pronounce  upon  the  validity  of  either  law  with  reference  to  the 
Constitution;  but  whether  the  decision  of  the  court  in  such  cases 
be  itself  binding  or  otherwise  must  depend  upon  its  conformity 
with,  or  its  warrant  from,  the  Constitution.  ^It  cannot  be  correctly 
held,  that  a  decision,  merely  because  it  be  by  the  Supreme  Court, 
is  to  override  alike  the  Constitution  and  the  laws  both  of  the 
States  and  of  the  United  States." 

And  in  a  dissenting  opinion  in  the  Passenger  Cases13  Chief 
Justice  Taney  with  respect  to  the  treaty  power  declared :  "  The 
first  inquiry  is,  whether,  under  the  Constitution  of  the  United 
States,  the  General  Government  has  the  power  to  compel  the  sev- 
eral States  to  receive,  and  suffer  to  remain  in  association  with  its 

12  5  How.  504;    12  L.  <?d.  256. 
12  7  How.   233;    12   L.  td.   7C2. 


Constitutional  Treaty-Makixg  Poweb.  499 

citizens,  every  person  or  class  of  persons  whom  it  may  be  the 
policy  or  pleasure  of  the  United  States  to  admit.  In  my  judg- 
ment, this  question  lies  at  the  foundation  of  the  controversy  in 
this  case,  I  do  not  mean  to  say  that  the  General  Government 
have,  by  treaty  or  act  of  Congress,  required  the  State  of  Massa- 
chusetts to  permit  the  aliens  in  question  to  land.  I  think  there  is 
no  treaty  or  act  of  Congress  which  can  justly  be  so  construed. 
But  it  is  not  necessary  to  examine  that  question  until  we  have 
first  inquired  whether  Congress  can  lawfully  exercise  such  a 
power,  and  whether  the  States  are  bound  to  submit  to  it.  For  if 
the  people  of  the  several  States  of  this  Union  reserved  to  them- 
selves the  power  of  expelling  from  their  borders  any  person,  or 
class  of  persons,  whom  it  might  deem  dangerous  to  its  peace,  or 
likely  to  prove  a  physical  or  moral  evil  among  its  citizens,  then 
any  treaty  or  law  of  Congress  invading  this  right,  and  authoriz- 
ing the  introduction  of  any  person  or  description  of  persons 
against  the  consent  of  the  State,  would  be  an  usurpation  of  power 
which  this  court  could  neither  recognize  nor  enforce.  I  had  sup- 
posed this  question  not  now  open  to  dispute." 

In  addition  to  the  foregoing  assertions  of  incompetence  of  the 
treaty-making  power  to  invade  the  reserved  rights  of  the  States, 
there  are  the  dicta,  earlier  quoted,  to  the  effect  that  this  power, 
though  not  in  terms  limited  by  the  Constitution,  is  not  competent 
to  change  the  general  character  of  our  government.  If  the  treaty- 
making  power  has  not  this  power,  then  certainly  the  reserved 
rights  of  the  States  are  not  completely  at  its  mercy.  For  to  in- 
vade radically  the  exclusive  jurisdiction  of  the  States  would  be, 
in  effect,  to  change  the  nature  of  our  federal  constitutional  system. 

I  214.  Instances  in  Which  Treaties  Have  Been  Upheld  though 
Infringing  Reserved  Rights  of  the  States. 
Opposing,  however,  these  dicta  which  have  been  quoted  are  a 
line  of  cases,  in  which  treaties  have  been  held  constitutional  with 
reference  to  matters  which  are  admittedly  not  within  the  power 
of  Congress  to  control.  And,  also,  there  have  been  numerous 
cases  in  which  state  laws  with  reference  to  matters  within  the 


500  United  States  Constitutional  Law. 

ordinary  legislative  competence  of  the  States,  have  been  held  void 
because  of  conflict  with  subsisting  federal  treaties.14 

Thus,  in  the  case  of  De  Geofrov  v.  Biggs,15  to  which  reference 
has  already  been  made,  it  is  declared:  "  That  the  treaty  power- 
of  the  United  States  extends  to  all  proper  subjects  of  negotiation 
between  our  government  and  the  government  of  other  nations.  Is 
clear.  It  is  also  clear  that  the  protection  which  should  be  afforded 
to  the  citizens  of  one  country  owning  property  in  another,  and 
the*  manner  in  which  that  property  may  be  transferred,  devised  or 
inherited,  are  fitting  subjects  for  such  negotiations  and  of  regula- 
tion by  mutual  stipulations  between  the  two  countries.  As  com- 
mercial intercourse  increases  between  different  countries  the  resi- 
dence of  citizens  of  One  country  within  the  territory  of  the  other 
naturally  follows,  and  the  removal  of  their  disability  from  alien- 
age to  hold,  transfer  and  inherit  property  in  such  cases  tends  to 
promote  amicable  relations.  Such  removal  has  been  within  the 
present  century  the  frequent  subject  of  treaty  arrangement.  The 
treaty  power,  as  expressed  in  the  Constitution,  is  in  terms  un- 
limited except  by  those  restraints  which  are  found  in  that  instru- 
ment against  the  action  of  the  government  or  of  its  department?, 
and  those  arising  xrom  the  nature  of  the  government  itself  and 
of  that  of  the  States.  It  would  not  be  contended  that  it  extends 
so  far  as  to  authorize  what  the  Constitution  forbids,  or  a  change 
in  the  character  of  the  government  or  in  that  of  one  of  the  States, 
or  a  cession  of  any  portion  of  the  territory  of  the  latter,  without 
its  consent.  (Fort  Leavenworth  B.  Co.  v.  Lowe,  114  U.  S.  525 ; 
5  Sup.  Ct.  Rep.  995;  29  L.  ed.  264.)  But  with  these  exceptions, 
it  is  not  perceived  that  there  is  any  limit  to  the  questions  which 
can  be  adjusted  touching  any  matter  which  is  properly  the  subject 
of  negotiation  with  a  foreign  country." 

14 Ware  v.  Hyltan,  3  Dall.  199;  1  L.  ed.  563;  Hopkirk  v.  Bell,  3  Cr.  454: 
2  L.  ed.  497;  Fairfax  v.  Hunter,  7  Cr.  603;  3  L.  ed.  153;  Chirac  v.  Chirac, 
2  Wheat.  259;  4  L.  ed.  234;  Lattimer  v.  Poteet,  14  Pot.  4;  10  L.  ed.  328; 
Haucnstein  v.  Lynham.  100  U.  S.  483;  25  L.  ed.  628;  Be  Geofrov  v.  Biggs, 
133  U.'S.  258;  10  Sup.  Ct.  Bap.  295;  33  L.  ed.  642.  See  also  a  strong 
dictum  in  Ward  v.  Race  Horse,  163  U.  S.  504;  16  Sup.  Ct.  Rep.  1076; 
41  L.  ed.  244. 

*  133  U.  S.  258;  10  Sup.  Ct.  Rep-  295;  33  L.  ed.  642. 


CONSTITUTIONAL    TkEATY-MaKIXG   PoWEK.  501 

In  1S98  the  President  requested  the  official  opinion  of  his 
Attorney-General  as  to  the  power  of  the  United  States-  to  enter 
into  treaty  stipulations  with  Great  Britain  for  the  regulation  of 
fisheries  in  the  waters  of  the  United  States  and  Canada  along  the 
international  boundary.  In  his  opinion  Mr.  Griggs  said:  "  The 
waters  of  the  lake  and  rivers  which  form  the  boundary  between 
the  United  States  and  Canada  are  upon  this  side  of  the  boundary 
line  within  the  territorial  jurisdiction  of  the  several  riparian 
States.  The  regulation  of  fisheries  in  navigable  waters  within 
the  territorial  limits  of  the  several  States,  in  the  absence  of  a 
federal  treaty,  is  a  subject  of  state  rather  than  of  federal  juris- 
diction. Congress  has  the  paramount  right  to  regulate  navigation 
in  the  navigable  waters  of  the  United  States  for  the  benefit  of 
all  the  citizens  of  the  Union,  but  Congress  has  no  authority  in 
the  absence  of  treaty  regulations,  to  pass  la^vs  to  regulate  or  pro- 
tect fisheries  within  the  territorial  jurisdiction  of  the  States. 
(McCready  v.  Virginia,  91  XL  S.  391;  21  L.  ed.  248;  Lawton  v. 
Steele,  152  U.  S.  133;  11  Sup.  Ct.  Rep.  499;  38  L.  ed.  385.) 
The  question  for  consideration,  therefore,  is  whether  the  United 
States  by  treaty  may  deprive  the  riparian  States  of  the  power  of 
control  and  regulation  over  the  fisheries  in  the  waters  within  their 
respective  jurisdictions  conterminal  -with  the  boundary-  between 
the  United  States  and  Canada.  It  is  obvious  that  if  by  the  exer- 
cise of  the  treaty-making  power  the  regulation  of  this  subject  is 
assumed  by  the  Federal  Government,  the  respective  state  govern- 
ments will  be  deprived  of  jurisdiction  over  that  subject  in  the 
same  waters.  The  regulation  of  fisheries  has  been  recognized  as 
a  proper  subject  for  international  agreement.  .  .  .  Where  a 
lake  or  river  is  divided  into  two  jurisdictions  by  a  boundary  line 
between  two  uations,  it  is  manifest  that  it  would  be  not  only  con- 
venient but  almost  necessary  for  the  adequate  regulation  of  the 
subject  that  an  agreement  by  treaty  or  other  stipulation  should 
exist  between  the  governments  of  the  two  countries,  in  order  to 
make  any  system  of  regulation  and  protection  effective.  The 
several  States  are  by  the  Constitution  forbidden  to  enter  into  any 
such  treaty  or  regulation  with  any  foreign  power,  and  unless  the 


502  United  States  Constitutional  Law. 

United  States  may  regulate  the  subject  by  treaty  it  is  impossible 
of  regulation  by  uniform  and  reciprocal  rules.  I  advise  you, 
therefore,  that  the  regulation  of  the  fisheries  in  these  boundary 
waters  is  a  proper  subject  of  the  treaty-making  power  vested  by 
the  Constitution  in  the  President  If  it  be  suggested  that  such 
a  treaty  is  beyond  the  constitutional  power  of  the  President  and 
the  Senate  to  effect,  because  it  deprives  the  States  of  jurisdiction 
and  authority  now  vested  in  them,  and  practically  would  annul 
their  laws  and  destroy  one  subject  of  state  sovereignty,  without 
going  into  a  history  of  that  clause  of  the  Constitution  above 
quoted,  which  declares  that  all  treaties  made  or  which  shall  be 
made  by  the  authority  of  the  United  States  shall  be  the  supreme 
law  of  the  land  (the  discussions  of  which  in  the  Constitutional 
Convention  and  in  the  state  conventions  called  for  the  adoption 
of  the  Constitution  were  very  extensive  and  interesting),  it  is 
sufficient  to  say  that  it  has  been  held  by  the  Supreme  Court  of 
the  United  States  that  it  is  no  objection  to  the  validity  of  a  treaty 
that  it  establishes  within  state  jurisdiction  a  different  law  and 
standard  of  rights  from  that  established  by  the  laws  of  the  State." 
In  a  number  of  instances,  as  said,  state  laws,  with  reference 
to  matters  ordinarily  within  state  cognizance,  have  been  held 
void  when  in  conflict  with  existing  federal  treaties.  Examples 
of  this,  are  laws  denying  the  right  of  the  alien  to  be  employed 
by  contractors  upon  public  works,  or  to  be  employed  by  private 
corporations.18 

§  215.  The  True  Doctrine. 

How,  now,  are  we  to  harmonize  these  declarations  that  the  re- 
served rights  of  the  States  may  not  be  infringed  by  the  treaty- 
making  power  with  the  fact  that,  in  specific  instances,  the  invasion 
of  these  rights  has  been  upheld  ? 

Essentially  speaking,  the  two  positions,  thus  absolutely  stated, 
cannot  be  harmonized.     There  is  no  principle  that  can  be  stated 

M  Baker  v.  Portland,  5  Sawyer,  566 ;  In  re  Tiburcio,  6  Sawyer,  349 ;  In  re 
Ah  Chong,  6  Sawyer,  451.  Cf.  Proceedings  of  the  American  Soc.  of  Int.  Law, 
1907,  Address  by  Prof.  G.  N.  Gregory. 


Constitutional  Treaty-Making  Power.  503 

which  will  bring  the  dicta  quoted  into  consonance  with  the  de- 
cisions referred  to.  Either  the  dicta  denying  to  the  treaty-making 
power  the  right  to  infringe  State  rights  are  wrong,  and  must  be 
abandoned,  or  the  decisions  upholding  such  infringement  were 
improper,  and  will  not  be  followed  in  the  future. 

The  author  is  convinced  that  the  obiter  doctrine  that  the 
reserved  rights  of  the  States  may  never  be  infringed  upon  by  the 
treaty-making  power  will  sooner  or  later  be  frankly  repudiated 
by  the  Supreme  Court.  In  its  place  will  be  definitely  stated  the 
doctrine  that  in  all  that  properly  relates  to  matters  of  interna- 
tional rights  and  obligations,  whether  these  rights  and  obligations 
rest  upon  the  general  principles  of  international  law  or  have  been 
conventionally  created  by  specific  treaties,  the  United  States 
possesses  all  the  powers  of  a  constitutionally  centralized  sovereign 
State;  and,  therefore,  that  when  the  necessity  from  the  inter- 
national standpoint  arises  the  treaty  power  may  be  exercised, 
even  though  thereby  the  rights  ordinarily  reserved  to  the  States 
are  invaded. 

The  writer  is  led  to  the  belief  that  this  will  be  the  position 
finally  and  affirmatively  taken  by  our  judiciary  from  a  review  of 
the  manner  in  which,  in  the  past,  in  every  instance  in  which  it 
has  been  necessary  to  endow  the  Federal  Government  with  a  power 
in  order  that  its  national  supremacy,  and  its  administrative  effi- 
ciency, might  be  preserved,  the  Supreme  Court  of  the  United 
States  has  found  the  means  to  do  so.17 

§  216.  Constitutional  Limits  to  the  Treaty-Making  Power. 

Assuming,  then,  that  the  reasoning  which  has  gone  before  is 
correct,  it  may  be  asked:  Are  we  led  to  the  conclusion  that,  in 
extent,  the  treaty-making  power  is  without  constitutional  limits, 
and  may  it  be  predicted  that  in  no  conceived  case  will  the  Su- 
preme Court  hold  void  of  legal  force  a  treaty  duly  entered  into 
by  the  treaty-making  power?    This  question  may  be  answered  in 

IT  A  more  detailed  statement  of  this  argument  is  given  in  Chapter  LXIV  of 
this  work,  in  the  section  entitled  "The  Conclusiveness  of  Administrative 
Determinations." 


504  United  States  Constitutional  Law. 

the  negative.  As  pointed  out  at  the  beginning  of  this  chapter,  there 
undoubtedly  are  limits  to  the  extent  of  the  treaty-making  power 
which  the  Supreme  Court  may  be  expected  to  recognize  and  apply. 
It  is  true  that  all  of  the  dicta  that  were  quoted  are  obiter  in  that 
in  no  instance  were  they  applied  to  hold  a  treaty  provision  void ; 
yet,  when  we  find  the  statement  so  positively  asserted,  and  so 
many  times  repeated,  we  may,  I  think,  take  it  as  established. 

If,  however,  as  we  have  seen,  individual  rights  and  the  reserved 
powers  of  the  States  may,  upon  occasion,  be  sacrificed  to  the 
treaty-making  power,  under  what  circumstances,  and  according 
to  what  principle,  may  we  expect  these  limitations  to  be  imposed  ? 
Briefly  stated,  the  answer  is  that  these  limitations  are  to  be  found 
in  the  very  nature  of  treaties.  That  is,  that  the  treaty-making 
power  may  not  be  used  to  secure  a  regulation  or  control  of  a  mat- 
ter not  properly  and  fairly  a  matter  of  international  concern.  It 
cannot  be  employed  with  reference  to  a  matter  not  legitimately 
a  subject  for  international  agreement,  any  more  than  can  the 
States  under  the  claim  of  an  exercise  of  their  police  powers  regu- 
late a  matter  not  fairly  comprehended  within  the  field  of  police 
regulation.  Thus,  while  it  might  be  appropriate  for  the  United 
States,  by  treaty  with  England,  to  provide  that  English  citizens 
living  in  the  United  States  should  have  certain  rights  of  property, 
or  schooling  privileges,  etc.,  within  the  States,  state  law  to  the 
contrary  notwithstanding,  it  would  not  be  appropriate,  and,  there- 
fore, would  not  be  constitutional,  for  the  United  States  by  such 
a  treaty  to  provide  that  all  aliens,  whether  British  subjects  or  not, 
should  enjoy  these  rights  within  the  States  in  which  they  might 
live.  So  likewise,  it  would  not  be  a  proper  or  constitutional  exer- 
cise of  the  treaty-making  power  to  provide  that  Congress  should 
have  a  general  legislative  authority  over  a  subject  which  has  not 
been  given  it  by  the  Constitution ;  or  that  a  power  now  exercised 
by  one  of  the  departments  of  the  General  Government  should  be 
exercised  by  another  department.  For  there  are  matters  of  do- 
mestic national  law  with  which  foreign  poAver  has  no  concern. 
In  short,  the  treaty-making  power  is  to  be  exercised  with  constitu- 
tional bona  fides. 


Coxstitutioxal  Tkeaty-M akixg  Poweb.  505 

The  principle  which  has  been  stated,  that,  to  be  constitutionally 
valid,  a  treaty  must  have  reference  to  a  subject  properly  a  matter 
for  international  agreement,  excludes  from  the  federal  treaty- 
making  power  the  authority  to  disregard  those  prohibitions  of  the 
Constitution,  express  and  implied,  which  are  directed  not  to  Con- 
gress but  to  the  National  Government  as  a  whole. 

1 1  is  scarcely  to  be  conceived  that  the  treaty-making  power  will 
ever  make  the  attempt,  but  should  it  seek  to  override  these  pro- 
hiUtions,  or  to  alter  the  distribution  of  powers  provided  for  in 
the  Constitution,  or  in  any  way  to 'change  the  general  character 
of  the  governmental  polity  by  that  instrument  created,  it  may  be 
expected  that  the  judiciary  will  interpose  its  veto.  The  treaty- 
makfng  power  in  all  its  fulness  ia  granted  that  the  National  Gov- 
ernment may  be  preserved,  that  it  may  be  efficient  for  the  pur- 
poses for  which  it  is  created,  not  that  it  may  be  destroyed  or 
changed  in  essential  character. 

It  is  a  principle  of  international  law  that  treaties  between 
nations  should  be  executed  with  uberrima  fides.  Undoubtedly, 
however,  our  courts,  in  construing  a  treaty  which  infringes  upon 
the  ordinary  reserved  rights  of  the  States,  will,  when  possible,  so 
rpret  it  as  to  minimize  so  far  as  possible  the  extent  of  this 
infringement.  And,  undoubtedly,  the  treaty-making  power  itself 
will,  when  possible,  refrain  from  entering  upon  treaties  which 
will  trench  upon  the  States'  reserved  .powers,  and  will,  in  the 
future,  take  extreme  .pains  so  to  word  international  agreements  as 
to  render  impossible  an  interpretation  by  the  other  signatory 
parties  which  will  give  to  them  this  effect.  This  caution  the 
recent  Japanese  school  question  in  California  will  suggest.  But 
in  any  case,  the  Supreme  Court  will  be  exceedingly  loth  to  deny 
1<  gal  validity  to  a  treaty  provision.  For  it  does  not  need  to  be 
ol-servcd  that,  though  by  holding  a  treaty  provision  unconstitu- 
tional that  provision  is  denied  legal  validity  in  this  country,  the 
United  States  is  not  thereby  released  from  its  obligation  under 
it  to  the  other  signatory  powers,  and  the  result  is,  necessarily,  a 
breach  of  our  covenant  with  those  powers.  The  same,  of  course, 
would  be  true  should  Congress  refuse  to  pass  the  legislation  neces- 


506  United  States  Constitutional  Law. 

sary  for  putting  a  treaty  into  full  force  and  effect,  unless,  indeed, 
as  is  sometimes  done,  it  were  provided  in  the  treaty  itself  that  it 
was  not  to  go  into  effect  unless,  and  until,  the  necessary  legislative 
assistance  was  obtained.18 

§  217.  Legislative  Powers  Ancillary  to  Treaty-Making  Powers. 

One  final  .point  with  reference  to  the  extent  of  the  treaty-making 
power  deserves  notice.     This  is  that  where,  for  its  enforcement,  a 

is  Mr.  Butler,  in  his  Treaty- Maying  Power  of  the  United  States,  §  3,  gives 
the  following  summary  of  his  conclusions  regarding  the  extent  of  the  treaty- 
making  power  in  the  United  States:  "First:  That  the  treaty-making  power 
of  the  United  States,  as  vested  in  the  Central  Government,  is  derived  not 
only  from  the  powers  expressly  conferred  by  the  Constitution,  but  that  it  is 
also  possessed  by  that  Government  as  an  attribute  of  sovereignty,  and  that 
it  extends  to  every  subject  which  can  be  the  basis  of  negotiation  and  contract 
between  any  of  the  sovereign  powers  of  the  world,  or  in  regard  to  which  the 
several  States  ef  the  Union  themselves  could  have  negotiated  and  contracted 
if  the  Constitution  had  not  expressly  prohibited  the  States  from  exercising 
the  treaty-making  power  in  any  manner  whatever  and  vested  that  power 
exclusively  in,  and  expressly  delegated  it  to,  the  Federal  Government.  Second: 
That  this  power  exists  in,  and  can  be  exercised  by,  the  National  Government, 
whenever  foreign  relations  of  any  kind  are  established  with  any  other  sovereign 
power,  in  regulating  by  treaty  the  use  of  property  belonging  to  States  or 
citizens  thereof,  such  as  canals,  railroads,  fisheries,  public  lands,  mining 
claims,  etc.;  in  regulating  the  descent  or  possession  of  property  within  the 
otherwise  exclusive  jurisdiction  of  States;  in  surrendering  citizens  and  inhab- 
itants of  States  to  foreign  powers  for  punishment  of  crimes  committed  out- 
side of  the  jurisdiction  of  the  United  States  or  of  any  State  or  territory 
thereof;  in  fact,  that  the  power  of  the  United  States  to  enter  into  treaty 
stipulations  in  regard  to  all  matters,  which  can  properly  be  the  subject  of 
negotiation  between  sovereign  States,  is  practically  unlimited,  and  that  in  no 
case  is  the  sanction,  aid  or  consent  of  any  State  necessary  to  validate  the 
treaty  or  to  enforce  its  provisions.  Third:  That  the  power  to  legislate  in 
regard  to  all  matters  affected  by  treaty  stipulations  and  relations  is  co-exten- 
sive with  the  treaty-making  power,  and  that  acts  of  Congress  enforcing  such 
stipulations  which,  in  the  absence  of  treaty  stipulations,  would  be  unconstitu- 
tional as  infringing  upon  the  powers  reserved  to  the  States,  are  constitutional, 
and  can  be  enforced,  even  though  they  may  conflict  with  state  laws  or  pro 
visions  of  state  constitutions.  Fourth:  That  all  provisions  in  state  statutes 
or  constitutions  which  in  any  way  conflict  with  any  treaty  stipulations, 
whether  they  have  been  made  prior  or  subsequent  thereto,  must  give  way  to 
the  provisions  of  the  treaty,  or  act  of  Congress  based  on  and  enforcing  the 
same,  even  if  such  provisions  relate  to  matters  wholly  within  state  juris- 
diction." 


Constitutional  Treaty-Making  Power.  507 

treaty  requires  ancillary  legislation,  Congress  would  seem  to  have 
the  constitutional  power  to  enact  the  needed  laws,  even  though 
these  may  relate  to  matters  not  within  the  general  sphere  of  its 
legislative  authority.  For  it  is  to  be  presumed  that  the  General 
Government  has  the  power  to  render  effective  a  treaty  which  it 
has  the  constitutional  power  to  enter  into.  A  somewhat  analogous 
case  is  the  legislative  power  recognized  to  belong  to  Congress  with 
reference  to  matters  of  admiralty  and  marine,  because  of  the  grant 
to  the  Federal  Judiciary  of  jurisdiction  over  admiralty  and  mari- 
time causes. 

§  218.  The  Treaty-Making  Power  May  not  "  Incorporate  "  For- 
eign Territory  into  the  United  States. 

As  we  have  already  learned  from  our  examination  of  the  insu- 
lar case  of  Downes  v.  Bidwell,19  the  treaty -making  power  is,  ac- 
cording to  that  decision,  without  the  power  to  incorporate  into 
the  United  States  territory  acquired  from  a  foreign  power.  For 
this  the  consent  of  Congress  is  required.  Four  of  the  five  majority 
justices  in  this  case,' it  will  be  remembered,  held  to  a  distinction 
between  incorporated  and  unincorporated  territory.  The  fifth 
justice  (Mr.  Brown)  held  that  in  no  case  are  Territories  parts 
of  the  United  States  in  the  strict  constitutional  sense;  and  that, 
therefore,  they  are  not  entitled  to  all  the  constitutional  guarantees 
until,  by  statute,  the  Constitution  has  been  extended  over  them, 
or  until  they  have  been  admitted  into  the  Union  as  States.20 

§  219.  The  Treaty-Making  Power  May  Alienate  Territory  of  the 
United  States  or  of  a  State  or  States. 
In  several  treaties  in  settlement  of  boundary  disputes  areas 
previously  claimed  by  the  United  States  as  its  own  have  been 
surrendered  to  foreign  powers.  These,  however,  can  scarcely  be 
considered  as  instances  of  the  alienation  of  portions  of  its  own 
territory,  for  the  fact  that  the  treaties  were  assented  to  by  the 

United  States  is  in  itself  evidence  that  it  was  conceded  that  the 

t \ 

19  182  U.  S.  244;  21  Sup.  Ct.  Rep.   770;  45  L.  ed.   1088. 

20  See  ante,  Chapter  XXX. 


508  United  States  Constitutional  Law. 

claim  that  the  areas  in  question  belonged  to  the  United  States 
was  unfounded.  There  has  been  no  instance  in  which  territory, 
indisputably  belonging  to  the  United  States,  has  been  alienated 
to  another  power.  "Whether  or  not  the  power  to  do  so,  should  the 
occasion  arise,  exists,  has  been  often  discussed,  and,*  in  fact,  we 
have  a  number  of  obiter  statements  upon  the  point  from  the 
Supreme  Court. 

In  De  Geofroy  v.  Riggs21  Justice  Field,  in  his  enumeration  of 
the  limitations  upon  the  treaty-making  power,  includes  its  ina- 
bility to  cede  any  portion  of  a  State  without  its  consent.  In  sup- 
port of  this  declaration  reference  is  made  to  the  case  of  Fort 
Leavenworth  R.  E.  Co.  v.  Lowe.22  That  case  decided,  simply, 
that  the  legislative  power  of  Congress  is  exclusive  over  lands 
within  a  State  purchased  with  its  consent  by  the  United  States 
for  a  constitutional  purpose;  and  that  a  State  has  the  constitu- 
tional power  thus  to  cede  portions  of  its  territory  to  the  General 
Government.  The  court  in  its  opinion,  however,  goes  on  to  say 
that  "  it  is  undoubtedly  true  that  the  State,  whether  represented 
by  her  legislature,  or  through  a  convention  specially  called  for 
that  purpose,  is  incompetent  to  cede  her  political  jurisdiction  and 
legislative  authority  over  any  part  of  her  territory  to  a  foreign 
country,  without  the  concurrence  of  the  General  Government.*' 
As  to  the  truth  of  this  obiter  statement,  there  can,  of  course,  be 
no  question,  for,  as  we  have  already  learned,  the  State  cannot, 
constitutionally,  have  any  international  dealings.23 

But  the  court  go  on  to  say:  "  The  jurisdiction  of  the  United 
States  extends  over  all  the  territory  within  the  States,  and,  there- 
fore, their  authority  must  be  obtained,  as  well  as  that  of  the  State 
within  which  the  territory  is  situated,  before  any  cession  of  sover- 
eignty or  political  jurisdiction  can  be  made  to  a  foreign  country/' 

In  support  of  this  statement  the  court  refers  to  the  adjustment 
of  the  northeastern  boundary  dispute  in  1S42  with  Great  Britain, 

21  133  TJ.  S.  258;   10  Sup.  Ct.  Rep.  205;  33  L.  ed.  642. 

22  114  U.  S.  525;  5  Sup.  Qt.  Rep.  995;  29  L.  ed.  204. 

23  Except,  possibly,  as  we  have  seen  (Chapter  XV),  with  reference  to  such 
an  unimportant  matter  as  the  administration  of  fishing  upon  boundary  waters. 


Constitutiox.vl  Treaty-Maktxg  Power.  509 

in  which  the  United  States  before  coming  to  an  agreement  with 
Great  Britain,  obtained  the  co-operation  and  concurrence  of  Maine 
and  Massachusetts.  Maine  appointed  commissioners  by  her  legis- 
lature, and  Massachusetts  by  her  Governor  under  authority  of  an 
act  of  her  legislature,  to  act  with  the  Secretary  of  State  of  the 
United  .States  in  the  matter. 

This  co-operation  of  the  authorities  of  Maine  and  Massachusetts 
was  at  the  suggestion  of  Webster,  then  Secretary  of  State,  but  it 
does  not  appear  from  his  correspondence  that  he  considered  this 
a  constitutional  necessity,  but  rather  that  it  was  expedient  from 
a  political  standpoint  that  the  opinion  of  these  two  States  should 
be  considered.24  Thus,  writing  privately  to  the  Governor  of 
Maine,  December  21,  1S41,  Webster  says:  "  In  the  present  posi- 
tion of  affairs,  I  suppose  it  will  not  be  prudent  to  stir  in  the 
direction  of  a  compromise  without  the  consent  of  Maine,"-25 

Besides  the  assertions  of  the  Supreme  Court  in  De  Geofroy  v. 
Eiggs  and  Fort  Leavenworth  R.  R.  Co.  v.  Lowe,  we  have  the  argu- 
ment of  Justice  White  in  Downes  v.  Bid  well,20  that  the  United 
States  is  without  the  treaty-right  to  sell  or  trade  away  any  por- 
tion of  territory,  whether  within  a  State  ot  a  Territory,  which 
has  been  u  incorporated  "  into  the  United  States.  u  In  conform- 
ity to  the  principle  which  I  have  admitted,"  he  says,  **  it  is  im- 
possible for  me  to  say  at  one  and  the  same  time  that  territory  is 
an  integral  part  of  the  United  States  protected  by  the  Constitu- 
tion, and  yet  the  safeguards,  privileges,  rights,  and  immunities 
which  arise  from  this  situation  are  so  ephemeral  in  their  character 
that  by  a  mere  act  of  sale  they  may  be  destroyed.  And  applying 
this  reasoning  to  the  provisions  of  the  treaty  under  consideration, 
to  me  it  seems  indubitable  that  if  the  treaty  with  Spain  incor- 
porated all  the  territory  ceded  into  the  United  States,  it  resulted 
that  the  millions  of  people  to  whom  that  treaty  related  were,  with- 
out the  consent  of  the  American  people  as  expressed  by  Cong; 

24 -Sec  ~\Yorks  of  Welstcr,  V,  98;  VI,  272. 

-•"■  Van  Tyno's  Letters  of  Webster,  248;  quoted  in  Moore,  Digest  of  Int.  I 
V.  174. 

2c  Concurred  in  by  Justices  Shiras,  McKenna  and  Gray. 


510  United  States  Constitutional  Law. 

and  without  any  hope  of  relief,  indissolubly  made  a-  part  of  our 
common  country." 

Later  on  in  his  opinion  Justice  White  is,  however,  forced  to 
say :  "  True,  from  the  exigency  of  a  calamitous  war  or  the  neces- 
sity of  a  settlement  of  boundaries,  it  may  be  that  citizens  of  the 
United  States  may  be  expatriated  by  the  action  of  the  treaty- 
making  power,  impliedly  or  expressly  ratified  by  Congress.  But 
the  arising  of  these  particular  conditions  cannot  justify  the  gen- 
eral proposition  that  territory  which  is  an  integral  part  of  the 
United  States  may,  as  a  mere  act  of  sale,  be  disposed  of." 
.  In  fact,  however,  as  we  know,  Justice  White  held  that  territory 
might  be  annexed  by  treaty  without  "  incorporation "  into  the 
United  States,  and  such  unincorporated  territory  concededly 
might  by  treaty  be  sold  or  traded  away.27 

Opposing  these  judicial  obiter  dicta  are  the  decisions  of  the 
Supreme  Court  in  Lattimer  v.  Poteet28  and  the  opinions  of  such 
commentators  as  Kent,  Story  and  Butler. 

In  Lattimer  v.  Poteet  the  Supreme  Court  upheld  a  treaty  of 
the  United  States  with  an  Indian  tribe  whereby  was  ceded  to  the 
Indians  an  area  claimed  by  a  State  as  its  own.  "  It  is  argued," 
said  the  court  in  its  opinion,  u  that  it  was  not  in  the  power  of 
the  United  States  and  the  Cherokee  Xation,  by  the  Treaty  of 
Tellico  in  1798,  to  vary  in  any  degree  the  treaty  line  of  Holston 
so  as  to  affect  private  rights  or  the  rights  of  Xorth  Carolina. 
.  .  .  It  is  a  sound  principle  of  international  law,  and  applies  to 
the  treaty-making  power  of  this  government,  whether  exercised 
with  a  foreign  nation  or  an  Indian  tribe,  that  all  questions  of 
disputed  boundaries  may  be  settled  by  the  parties  to  the  treaty. 
And  to  the  exercise  of  these  high  functions  by  the  government, 

27  It  will  be  observed  that  Justice  White's  denial  to  the  treaty  power  of  the 
right  to  alienate  incorporated  territory,  save  as  necessitated  by  a  disastrous 
war,  is  not  predicated  upon  the  federal  character  of  the  United  States,  that 
is,  upon  a  doctrine  of  reserved  rights  of  the  States,  but  upon  the  general 
constitutional  character  of  the  Federal  Government  as  one  deriving  its  power 
by  grant  from  its  citizens.  Cf.  American  Law  Register,  February,  1907,  p.  83, 
note. 

28  14  Pet.  4;    10  L.  ed.  328. 


Constitutional  Treaty-Makixg  Power.  511 

within  its  constitutional  power,  neither  the  rights  of  a  State  nor 
those  of  an  individual  can  be  interposed." 

Kent  in  his  Commentaries  says:  "  The  better  opinion  would 
seem  to  be,  that  such  a  power  of  cession  of  the  territory  of  a  State 
without  its  consent  does  reside  exclusively  in  the  treaty-making 
power,  under  the  Constitution  of  the  United  States,  yet  sound 
discretion  would  forbid  the  exercise  of  it  without  the  consent  of 
the  local  government  who  are  interested,  except  in  cases  of  great 
necessity,  in  which  the  consent  might  be  presumed."  'l9 

"  On  April  14,  1838,  Edward  Everett,  who  was  then  governor 
of  Massachusetts,  confidentially  asked  the  opinion  of  Mr.  Justice 
Story  concerning  a  resolution  of  the  Massachusetts  legislature, 
which  had  been  presented  to  him  for  his  signature,  in  which  it 
was  declared  that  no  power  delegated  by  the  Constitution  to  the? 
United  States  authorized  the  government  to  cede  to  a  foreign 
nation  any  territory  lying  within  the  limits  of  a  State  of  the 
Union.  Mr.  Everett  called  attention  to  the  faot  that  in  section  1502 
of  Story's  Commentaries  on  the  Constitution,  in  which  certain 
restrictions  on  the  treaty-making  power  were  named,  that  of  ced- 
ing a  part  of  a  State  was  not  mentioned,  but  that  the  remark  was 
added,  '  Whether  there  are  any  other  restrictions  necessarily 
growing  out  of  the  structure  of  the  government  will  remain  to  be 
considered  whenever  the  exigency  shall  arise.'  Mr.  Everett  fur- 
ther observed  that  the  restriction  in  question,  if  it  existed,  must 
be  one  of  this  character,  bjat  that  the  pending  controversy  did  not 
appear  to  him  to  create  such  an  exigency,  since  it  was  a  question 
not  of  ceding  an  admitted  part  of  the  territory  of  Maine,  but  of 
ascertaining  the  boundary  between  British  and  American  terri- 
tory. Mr.  Justice  Story,  on  the  17th  of  April,  replied  that  ho 
could  not  admit  it  to  be  universally  true  that  the  Constitution  of 
the  United  States  did  not  authorize  the  government  to  cede  to  a 
'  foreign  nation  territory  within  the  limits  of  a  State,  since  such 
a  cession  might,  for  example,  be  indispensable  to  purchase  peace, 
or  might  be  of  a  nature  calculated  for  the  safety  of  both  nations 
or  be  an  equivalent  for  a  like  cession  on  the  other  side.      The 

29  1,    1(57,   note  b. 


Bftfi  Umted  States  Coxstitetioxal  Law. 

learned  justice  added  that  he  had  some  years  previously  had  a 
conversation  on  the  subject  with  Chief  Justice  Marshall.  '  He 
was,'  said  Mr.  Justice  Story,  '  unequivocally  of  opinion,  that  the 
treaty-making  power  did  extend  to  cases  of  cession  of  territory, 
though  he  would  not  undertake  to  say  that  it  could  extend  to  all 
cases;  yet  he  did  not  doubt  it  must  be  construed  to  extend  to 
some.'  "  30 

Mr.  Butler's  views  as  to  the  constitutional  effect  of  the  treaty- 
making  power  have  already  been  quoted  in  this  chapter.  They 
grant  to  the  Federal  Government  full  power  to  alienate  without 
the  consent  of  a  State,  any  portion  or  all  of  its  territory.  On 
page  394  of  liis  second  volume,  Mr.  Butler,  after  referring  to  the 
settlement  of  the  northeastern  boundary,  says:  "If  it  be  said 
only  a  part  of  a  State  was  involved  in  that  case,  and  that  although 
the  power  might  possibly  be  exercised  as  to  a  part  of  a  State,  an 
entire  State  could  not  have  been  ceded  away,  the  answer  can  only 
be  that  if  the  salvation  of  every  other  State  in  the  Union  depended 
upon  the  boundary  line  being  so  fixed  that  an  entire  State  should 
be  included  in  British  possessions,  and  in  default  thereof  the 
Union  might  have  been  plunged  into  a  war  resulting  in  its  de- 
struction, undoubtedly  the  treaty-making  power  in  the  Central 
Government  would  have  been  able  to  accomplish  that  result,  and 
it  might  have  been  just  as  necessary  to  exercise  it,  as  at  times  it 
has  been  necessary  to  amputate  a  limb  in  order  to  save  the  life 
itself;  in  such  extreme  cases  (and  it  is  to  be  hoped  they  will  never 
occur)  the  full  extent  of  the  power  would  have  to  be  exercised  — 
regretfully  indeed  but  nevertheless  effectually." 

In  accordance  with  the  principles  already  laid  down  in  this 
chapter,  the  author  of  this  treatise  is  of  the  opinion  that  the 
United  States  has,  through  its  treaty-making  organ,  the  constitu- 
tional power,  in  cases  of  necessity,  to  alienate  a  portion  of,  or  the 
entire  territory  of  a  State  or  States.  The  same  reasoning  which 
supports  the  power  of  the  United  States,  as  a  sovereign  power 
in  international  relations,  to  annex  territories,  is  sufficient  to  sus- 

30  Story,  Life  of  Joseph  Story,  II,  2S6-2S0.  Quoted  by  Moore,  International 
Laic  Digest,  V,  172. 


COXSTIXCTIONAI.    Ti;  KATY-M  AKIXG    POWER.  513 

tain  its  power  to  part  with  diem,  even  should  the  area  so  parted 
with  be  a  part  of  one  of  the  States  or  include  one  or  more  of 
them. 

Should  territory  he  alienated  to  a  foreign  power,  it  would  seem 
that  this  would  have  to  be  done  by  treaty.  Should,  however,  the 
alienation  be  by  the  way  of  granting  independence  to  a  particular 
territory,  as,  for  example,  Porto  Rico  or  the  Philippine  Islands, 
this  could  be  done  by  joint  resolution.  Should  the  people  of  a 
territory  revolt  against  the  United  States  control,  establish  a  de 
facto  government,  and  realize  in  fact  their  independence,  this  inde- 
pendence might  be  recognized  by  a  treaty.  But  in  such  case  the 
treaty  would  recognize  a  fait  accompli,  rather  than  bring  it  about. 

§  220.  The  Violation  of  Treaties. 

Treaties  entered  into  by  the  United  States  may  be  viewed  in 
two  lights;  (1)  as  constituting  parts  of  the  supreme  law  of  the 
land,  and  (2)  as  compacts  between  the  United  States  and  foreign 
Powers.  Viewed  in  this  second  light  this  infraction  is  a  matter 
outside  judicial  cognizance,  and  within  the  exclusive  concern  of 
the  political  departments. 

In  Taylor  v.  ^Morton,31  approved  by  the  Supreme  Court,32  Jus- 
tice Curtis  says :  "  Is  it  a  judicial  question,  whether  a  treaty 
with  a  foreign  sovereign  has  been  violated  by  him ;  whether  the 
consideration  of  a  particular  stipulation  in  a  treaty  has  been 
voluntarily  withdrawn  by  one  party,  so  that  it  is  no  longer  obliga- 
tory on  the  other;  whether  the  view  and  acts  of  a  foreign  sover- 
eign, manifested  through  his  representative,  has  given  just  occa- 
sion to  the  political  departments  of  our  government  to  withhold 
the  execution  of  a  promise  contained  in  a  treaty  or  to  the  act  in 
direct  contravention  of  such  promise?  I  apprehend  not.  These 
powers  have  not  been  confided  by  the  people  to  the  judiciary, 
which  has  no  suitable  means  to  exercise  them,  but  to  the  execu- 
tive and  legislative  departments  of  our  government. 


31  2  Curtis,  454. 

32  2  Black,  481;    17  L.  ed.  277. 


514  United  States  Constitutional  Law. 

The  rule  thus  laid  down  in  Taylor  v.  Morton  has  been  uni- 
formly followed  in  subsequent  cases.  In  Head  Money  Cases,3'* 
the  court  say:  "A  treaty  is  primarily  a  compact  between  inde- 
pendent nations.  It  depends  for  the  enforcement  of  its  provisions 
on  the  interest  and  the  honor  of  the  governments  which  are  parties 
to  it.  If  these  fail,  its  infraction  becomes  the  subject  of  inter- 
national negotiations  and  reclamations,  so  far  as  the  injured  party 
chooses  to  seek  redress,  which  may  in  the  end  be  enforced  by 
actual  war.  It  is  obvious  that  with  all  this  the  judicial  courts 
have  nothing  to  do,  and  can  give  no  redress.  But  a  treaty  may 
also  contain  provisions  which  confer  certain  rights  upon  the  citi- 
zens or  subjects  of  one  of  the  nations  residing  in  the  territorial 
limits  of  the  other,  which  partake  of  the  nature  of  municipal  law, 
and  which  are  capable  of  enforcement  as  between  private  parties 
in  the  courts  of  the  country.  An  illustration  of  this  character  is 
found  in  treaties  which  regulate  the  mutual  rights  of  citizens  and 
subjects  of  the  contracting  nations  in  regard  to  rights  of  property 
by  descent  or  inheritance,  when  the  individuals  concerned  are 
aliens." 

Again,  in  Whitney  v.  Robertson,34  the  opinion  declares:  "A 
treaty  is  primarily  a  contract  between  two  or  more  independent 
nations,  and  is  so  regarded  by  writers  on  public  law.  For  the 
infraction  of  its  provisions  a  remedy  must  be  sought  by  the  in- 
jured party  through  reclamations  upon  the  other.  AVhen  the 
stipulations  are  not  self-executing,  they  can  only  be  enforced  pur- 
suant to  legislation  to  carry  them  into  effect,  and  such  legislation 
is  as  much  subject  to  modification  and  repeal  by  Congress  as  legis- 
lation upon  any  other  subject.  If  the  treaty  contains  stipulations- 
which  are  self-executing,  that  is,  require  no  legislation  to  make 
them  operative,  to  that  extent  they  have  the  force  and  effect  of  a 
legislative  enactment.  Congress  may  modify  such  provisions,  so 
far  as  they  bind  the  United  States,  or  supersede  them  altogether. 
By  the  Constitution  a  treaty  is  placed  on  the  same  footing  and 
made  of  like  obligation  with  an  act  of  legislation.     Both  are  de- 

33  112  U.  S.  580;  5  Sup.  Ct.  Rep.  247;  28  L.  ed.  798. 

34  124  U.  S.  190;  8  Sup.  Ct.  Rep.  450;  31  L.  ed.  386. 


Constitutional  Tueaty-Makixg  Power.  515 

clared  by  that  instrument  to  be  the  supreme  law  of  the  land,  and 
no  superior  efficacy  is  given  to  either  power  over  the  other.  When 
the  two  relate  to  the  same  subject,  the  courts  will  always  endeavor 
to  construe  them  so  as  to  give  effect  to  both,  if  that  can  be  done 
without  violating  the  language  of  either ;  but  if  the  two  are  incon- 
sistent, the  one  last  in  date  will  control  the  other,  provided  always 
the  stipulation  of  the  treaty  on  the  subject  is  self-executing.  If 
the  country  with  which  the  treaty  is  made  is  dissatisfied  with  the 
action  of  the  legislative  department,  it  may  present  its  complaint 
to  the  executive  head  of  the  government,  and  take  such  other 
measures  as  it  may  deem  essential  for  the  protection  of  its  inter- 
ests. The  courts  can  afford  no  redress.  Whether  the  complaining 
nation  has  just  cause  of  complaint,  or  our  country  was  justified  in 
its  legislation,  are  not  matters  for  judicial  cognizance." 

§  221.  Treaties  Remain  Internationally  Binding  upon  the  United 
States  even  when  Congress  has  Refused  the  Legislation 
Necessary  to  put  Them  into  full  Force  and  Effect,  or 
when  it  Has  Abrogated  Them  by  Subsequent  Legisla- 
tion, or  when  the  Supreme  Court  Has  Declared  them 
Unconstitutional. 
It  is  a  principle  of  international  law  that  one  Xation  in  its 
dealings  with  another  Xation  is  not  required  to  know,  and,  there- 
fore, is  not  held  to  be  bound  by,  the  peculiar  constitutional  struc- 
ture of  that  other  Xation.     It  is  required,  indeed,  to  know  what 
is  the  governmental  organ  through  which  treaties  are  to  be  rati- 
fied.    But  further  than  this  it  need  not  examine,  for  each  State 
is  conclusively  presumed  to  be  able  to  carry  into  full  force  and 
effect  any  international  engagement  which  it,  through  its  treaty- 
making  power,  may  enter  upon. 

In  Dana's  edition  of  Wheaton's  International  Law,  it  is  de- 
clared: "If  a  treaty  requires  the  payment  of  money,  or  any 
other  special  act,  which  cannot  be  done  without  legislation,  the 
treaty  is  still  binding  on  the  nation;  and  it  is  the  duty  of  the 
nation  to  pass  the  necessary  laws.  If  that  duty  is  not  performed, 
the  result  is  a  breach  of  the  treaty  by  the  nation,  just  as  much 


516  Uxtted  States  Coxstitutioxal  Law. 

as  if  the  breach  had  been  an  affirmative  act  by  any  other  depart- 
ment of  the  Government.  Each  nation  is  responsible  for  the 
right  working  of  the  internal  system,  by  which  it  distributes  its 
sovereign  functions;  and,  as  foreign  nations  dealing  with  it  can- 
not be  permitted  to  interfere  with  or  control  these,  so  they  are  not 
to  be  affected  or  concluded  by  them  to  their  own  injury."  M 

This  principle  the  United  States  has  not  hesitated  upon  occasion 
to  assert.  Hr.  Blaine,  when  Secretary  of  State,  wrote  to  oar 
minister  to  Hawaii,  in  1881,  with  reference  to  a  treaty  which  that 
country  had  concluded  with  the  United  States,  as  follows :  "  I 
am  not  aware  whether  or  not  a  treaty,  according  to  the  Hawaiian 
constitution  is,  as  with  us,  a  supreme  law  of  the  land,  upon  the 
construction  of  which  —  the  proper  case  occurring — every  citi- 
zen would  have  the  right  to  the  judgment  of  the  courts.  But,  even 
if  it  be  so,  and  if  the  judicial  department  is  entirely  independent 
of  the  executive  authority  of  the  Hawaiian  government,  then  the 
decision  of  the  court  would  be  the  authorized  interpretation  of 
the  Hawaiian  government,  and  however  binding  upon  that  gov- 
ernment would  be  none  the  less  a  violation  of  the  treaty.  In  the 
event,  therefore,  that  a  judicial  construction  of  the  treaty  should 
annul  the  privileges  stipulated,  and  be  carried  into  practical  execu- 
tion,, this  government  would  have  no  alternative  and  would  be 
compelled  to  consider  such  action  as  the  violation  by  the  Hawaiian 
government  of  the  express  terms  and  conditions  of  the  treaty  and, 
with  whatever  regret,  would  be  forced  to  consider  what  course  in 
reference  to  its  own  interests  had  become  necessary  upon  the 
manifestation  of  such  unfriendly  feeling." 

And  in  1839  with  reference  to  the  refusal  of  the  French  Cham- 
ber of  Deputies  to  make  an  appropriation  called  for  by  a  treaty 
concluded  between  France  and  this  country,  Air.  Wheaton  wrote: 
"  Neither  government  [France  nor  the  United  States]  has  any- 
thing to  do  with  the  auxiliary  legislative  measures  necessary,  on 
the  part  of  the  other  State,  to  give  effect  to  the  treaty.  The 
nation  is  responsible  to  the  government  of  the  other  nation  for 

35  Dana's  Wheaton,  §  543?  note  250,  citing  1  Kent,  165-6;  Heffter,  §  84; 
Vattel,  lib.  IV,  c.  2,   §   14;  Halleck,  854. 


Constitutional  Tukaty-Makixg  Power.  olT 

its  non-execution,  whether  the  failure  to  fulfil  it  proceeds  from 
the  omission  of  one  or  other  of  the  departments  of  its  government 
to  perforin  its  duty  in  respect  to  it.  The  omission  here  is  on  the 
part  of  the  legislature;  but  it  might  have  been  on  the  part  of  the 
judicial  department  —  the  court  of  cassation  might  have  refused 
to  render  some  judgment  necessary  to  give  effect  to  the  treaty. 
The  King  cannot  compel  the  Chambers,  neither  can  he  compel  the 
courts;  but  the  nation  is  none  the  less  responsible  for  the  breach 
of  faith  thus  arising  out  of  the  discordant  aetion  of  the  internal 
machinery  of  its  constitution."36 

§  222.  The  Date  at  Which  Treaties  Go  into  Effect. 

In  Haver  v.  Yaker37  Justice  Davis  speaking  with  reference  to 
the  date  at  which  a  treaty  goes  into  effect,  says:  u  It  is  undoubt- 
edly true  as  a  principle  of  international  law,  that,  as  respects 
the  rights  of  either  government  under  it,  a  treaty  is  considered  as 
concluded  and  binding  from  the  date  of  its  signature.  In  this  re- 
gard the  exchange  of  ratifications  has  a  retroactive  effect,  confirm- 
ing the  treaty  from  its  date.  (Wheat.  Int.  Law,  by  Dana,  386.) 
But  a  different  rule  prevails  where  the  treaty  operates  on  indi- 
vidual rights.  The  principle  of  relation  does  not  apply  to  rights 
of  this  character,  which  were  vested  before  the  treaty  was  ratified. 
In  so  far  as  it  affects  them,  it  is  not  considered  as  concluded  until 
there  is  an  exchange  of  ratifications,  and  this  we  understand  to 
Lave  been  decided  by  this  court,  in  Arredondo's  ease,  reported 
in  6  Peters.  The  reason  of  the  rule  is  apparent  In  this  country, 
a  treaty  is  something  more  than  a  contract,  for  the  federal  Con- 
stitution declares  it  to  be  the  law  of  the  land.  If  so,  before  it 
can  become  a  law.  the  Senate,  in  whom  rests  the  authority  to 
ratify  it,  must  agree  to  it.  But  the  Senate  are  not  required  to 
adopt  or  reject  it  as  a  whole,  but  may  modify  or  amend  it,  as  was 
done  with   the  Treaty  under  consideration.     As  the  individual 


Mr.  Wheatoa,  Minister  at  Copenhapren,  to  Mr.   Butler.  Attorney-General, 
January  20.   1835.  adopted  in  Lawrence's  Wheaton    (1863),  45P :   and  quoted 
al<  i  with  approval  in  Meier,  Abschluss  von  Staatsvcrtrrigcn,  Leipzig,  I,  1874, 
p.  168.     See  Moore's  Difjrst  of  Int.  Laic,  V,  231. 
37  9  Wall.  32:  19  L.  ed.  571. 


518  United  States  Constitutional  Law. 

citizen,  on  whose  rights  of  property  it  operates,  has  no  means  of 
knowing  anything  of  it  while  before  the  Senate,  it  would  be 
wrong  in  principle  to  hold  him  bound  by  it,  as  the  law  of  the  land, 
until  it  was  ratified  and  proclaimed.  And  to  construe  the  law, 
so  as  to  make  the  ratification  of  the  treaty  relate  back  to  its  sign- 
ing, thereby  divesting  a  title  already  vested,  would  be  manifestly 
unjust,  and  cannot  be  sanctioned." 

§  223.  The  Denunciation  of  Treaties. 

Though  the  Senate  participates  in  the  ratification  of  treaties, 
the  President  has  the  authority,  without  asking  for  senatorial 
advice  and  consent,  to  denounce  an  existing  treaty  and  to  declare 
it  no  longer  binding  upon  the  United  States.  In  important  cases, 
however,  he  would  undoubtedly  seek  senatorial  approval  before 
taking  action.  But  whether  or  not  this  approval  be  sought,,  the 
courts  hold  themselves  bound  by  the  denunciation,  the  existence 
or  non-existence  of  a  treaty  being  a  political  question  the  decision 
upon  which  by  the  political  departments  of  the  government  is 
binding  upon  the  judicial  departments.38 

§  224.  The  Construction  of  Treaties. 

As  to  public  rights  the  courts  hold  themselves  bound  by  the 
construction  given  to  treaties  by  the  political  departments.  As 
to  private  rights,  however,  arising  under  treaties  in  force,  and 
even  as  to  public  rights  when  these  are  inseparable  from  private 
rights,  the  courts  exercise  independent  judgment  as  to  the  mean- 
ing to  be  given  to  treaty  provisions.39 

38  See  Chapter  LI,  and  especially  the  case  of  Terlinden  v.  Ames,  184  U.  S. 
270;  22  Sup.  Ct.  Rep.  484;  46  L.  ed.  534. 

39  See  Chapter  LL 


CHAPTER  XXXVI. 

THE  AMENDMENT  OF  THE  FEDERAL  CONSTITUTION. 
§  225.  The  Amending  Clause. 

The  amendment  of  the  federal  Constitution,  while  politically 
a  subject  of  great  importance,  has  given  rise  to  few  legal  adjudi- 
cations. 

Article  V  of  the  Constitution  provides :  "  The  Congress,  when- 
ever two-thirds  of  both  Houses  shall  deem  it  necessary,  shall  pro- 
pose amendments  to  this  Constitution,  or,  on  the  application  of 
the  legislatures  of  two-thirds  of  the  several  States,  shall  call  a 
convention  for  proposing  amendments,  which,  in  either  case,  shall 
be  valid  to  all  intents  and  purposes  as  parts  of  this  Constitution, 
when  ratitied  by  the  legislatures  of  three-fourths  of  the  several 
States,  or  by  conventions  in  three-fourths  thereof,  as  the  one  or 
the  other  mode  of  ratification  may  be  proposed  by  the  Congress; 
Provided  that  no  amendment  which  may  be  made  prior  to  the 
year  one  thousand  eight  hundred  and  eight  shall  in  any  manner 
affect  the  first  and  fourth  clauses  in  the  ninth  section  of  the  first 
article;1  and  that  no  State,  without  its  consent,  shall  be  deprived 
of  its  equal  suffrage  in  the  Senate." 

It  will  be  seen  that  two  methods  for  proposing,  as  well  as 
two  methods  for  ratifying  proposed  amendments  are  provided. 
In  practice,  however,  the  fifteen  amendments  which  have  been 
added  to  the  Constitution  as  originally  adopted  have  all  been 
proposed  by  Congress  and  that  body  has  in  each  instance  provided 
for  ratification  by  the  state  legislatures. 

i  Art.  I,  Sec.  9,  CI.  1 :  "  The  migration  or  importation  of  such  persona 
as  any  of  the  States  now  existing  shall  think  proper  to  admit,  shall  not  be 
prohibited  by  the  Congress  prior  to  the  year  one  thousand  eight  hundred  and 
eight,  but  a  tax  or  duty  may  be  imposed  on  such  importation  not  exceeding 
ten  dollars  for  each  person." 

Art.  I,  Sec.  9,  CI.  4 :  "  No  capitation,  or  other  direct  tax  shall  be  laid, 
unless  in  proportion  to  the  census  or  enumeration  hereinbefore  directed  to 
be  taken." 

[519] 


520  United  States  Constitutional  Law. 

"When  proposing  amendments  it  lias  been  held  that  only  two- 
thirds  of  those  present  in  the  House  of  Congress  and  not  two- 
thirds  of  their  entire  membership  is  sufficient.2 

The  requirement  of  a  two-thirds  vote  applies  only  as  to  the 
vote  on  the  final  passage  of  the  proposal.  Proposed  amend- 
ments, it  has  therefore  been  held,  may  be  amended  by  a  majority 
vote,  but  two-thirds  are  required  when  one  House  is  voting  finally 
to  concur  as  to  proposals  of  the  other  House.3 

§  226.  Presidential  Approval  not  Required. 

The  President's  approval  of  a  proposed  amendment  is  not  re- 
quired. In  Hollingsworth  v.  Virginia4  the  court  without  argu- 
ment say :  "  The  negative  of  the  President  applies  only  to  the 
ordinary  cases  of  legislation ;  he  has  nothing  to  do  with  the  propo- 
sition or  adoption  of  amendments  to  the  constitution." 

In  1865  a  proposed  amendment  having  been  inadvertently  sent 
to  the  President  for  his  approval,  the  Senate  adopted  the  follow- 
ing resolution: 

2  The  question  having  been  raised  by  a  member,  Speaker  Reed  of  the  Hoase 
said: 

"  The  question  is  one  that  has  been  so  often  decided  that  it  seems  hardly 
necessary  to  dwell  upon  it.  The  provision  of  the  Constitution  says  "  two- 
thirds  of  the  House."  What  constitutes  a  House?  A  quorum  of  the  member- 
ship, a  majority,  one-half  and  more.  That  is  all  that  is  necessary  to  con- 
stitute a  House  to  do  all  the  business  that  comes  before  the  House.  Anion g 
the  business  that  comes  before  the  House  is  the  reconsideration  of  a  bill  that 
has  been  vetoed  by  tlie  President ;  another  is  a  proposed  amendment  to  the 
Constitution;  and  the  practice  is  uniform  in  both  cases  that  if  a  quorum  of 
the  House  is  present  the  House  is  constituted  and  two-thirds  of  those  voting 
are  sufficient  in  order  to  accomplish  the  object.  It  has  nothing  to  do  with 
the  question  of  what  States  are  present  and  represented,  or  what  States  are 
present  and  vote  for  it.  It  is  the  House  of  Representatives  in  this  instance 
that  votes  and  performs  its  part  of  the  function.  If  the  Senate  does  the  same 
thing,  then  the  matter  is  submitted  to  the  States  directly,  and  they  pass 
upon  it. 

The  first  Congress,  I  think,  had  about  sixty-five  members,  and  the  first 
amendment  that  was  proposed  to  the  Constitution  was  v(  ttd  for  by  thirty- 
seven  members,  obviously  not  two-thirds  of  the  entire  House.  (First  session 
First  Congress,  Journal,  p.  121,  Gales  and  Seaton  ed.)  So  the  question  seems 
to  have  been  met  right  on  the  very  tlireshold  of  our  Government  and  disposed 
of  in  that  way." 

*  Hinds,  Precedents  of  the  House  of  Representatives,  V,  §§   7029-7039. 

<3  Dall.  378;  1  L.  ed.  644. 


AMEBSaCEKI    of    thi:    Fkukkal   Constitution.  :,-2l 

u  Besolved,  That  the  article  of  amendment  proposed  by  Con- 
gress to  be  added  to  the  Constitution  of  the  United  States  respect- 
ing the  extinction  of  slavery  therein  having  been  inadvertently 
presented  to  the  President  for  his  approval,  it  is  hereby  declared 
that  such  approval  was  unnecessary  to  gives  effect  to  the  action  of 
Congress  in  proposing  said  amendment,  inconsistent  with  former 
practice  in  reference  to  all  amendments  to  the  Constitution  here- 
tofore adopted,  and  being  inadvertently  done,  should  not  con- 
stitute a  precedent  for  the  future;  and  the  Secretary  is  hereby 
instructed  not  to  communicate  the  notice  of  the  approval  of  said 
proposed  amendment  by  the  President  to  the  House  of  Repre- 
ss ntatives."5 

§  227.  Scope  of  the  Amending  Clause, 

In  scope  the  amending  power  is  now  limited  as  to  but  one  sub- 
ject,-namely,  the  equal  representation  of  the  States  in  the  Senate, ,J 
It  has  by  some  been  argued  that  even  this  limitation  may  be 
evaded  by  adopting  a  constitutional  amendment  eliminating  this 
limitation  upon  the  amending  power,  and  thus  opening  the  way 
to  subsequent  amendments  providing  for  an  unequal  senatorial 
representation  of  the  States,7 

It  would  seem  that  a  state  legislature  having  rejected  an 
amendment  proj>osed  by  Congress,  may  later  reconsider  its  action 
and  give  its  approval.8  In  1SG5  the  legislature  of  Kentucky 
having  rejected  a  proposed  amendment  the  governor  of  the  State,  • 
in  a  recommendation  to  the  legislature,  said:  ''  When  ratified  by 
the  legislatures  of  the  several  States  the  question  will  be  finally 
withdrawn,  and  not  before.  Until  ratified  it  will  remain  an 
open  question  for  the  ratification  of  the  legislatures  of  the  several 

5  For  similar  decisions  in  the  House  of  Rejiresentatives,  see  Hinds,  Prece- 
dents of  the  House  of  Representatives,  V,  s  7 

6  It  has  at  limes  been  alleged  that  no  amendments  in  violation  of  the 
"spirit"  of  the  Constitution  or  providing  for  a  change  in  the  essential  nature 
of  the  American  State  would  he  valid.  The  argument  i"  support  of  this  view 
rest-,  however,  upon  a  conception  of  the  Constitution  as  a  contract  between 
the  States, 

T  Cf.  von  Hoist.  Constiti'tionnI  I.mr.  p.  31,  note. 
s.Jameson,  Constitutional  Conventions,  §  576. 


522  United  States  Constitutional  Law. 

States.  When  ratified  by  the  legislature  of  a  State,  it  will  be 
final  as  to  such  State;  and,  when  ratified  by  the  legislatures  of 
three-fourths  of  the  several  States,  will  be  final  as  to  all.  Noth- 
ing but  ratification  forecloses  the  right  of  action.  When  ratified, 
all  power  is  expended.  Until  ratified,  the  right  to  ratify 
remains." 

In  the  foregoing  quotation  it  is  said  that  a  state  legislature 
having  once  ratified  its  action  is  final.  Until  three-fourths 
of  the  States  have  ratified,  any  State  may  withdraw  a  rejection 
previously  given.  This  in  fact  was  done  by  several  States  with 
reference  to  the  Fourteenth  Amendment,  and  the  ratifications  thus 
given  accepted  as  valid.  That  a  ratification  onc£  given  may  not 
be  withdrawn  would  also  seem  to  be  settled  by  the  action  taken 
by  the  federal  authorities  in  counting  among  those  ratifying  the 
Fourteenth  Amendment  certain  States  which,  having  ratified, 
later  attempted  to  reverse  this  action.9 

The  submission  in  1866  of  the  Fourteenth  Amendment  to  the 
legislatures  of  the  States  at  a  time  when  a  number  of  the 
Southern  States  had  not  yet  been  "  reconstructed  "  and  admitted 
to  the  full  enjoyment  of  privileges  belonging  to  member  States 
of  the  Union,  gave  rise  to  the  question  whether  the  legislatures  of 
the  reconstruction  governments  in  those  States  were  constitu- 
tionally qualified  to  act  in  the  premises.  Seward,  Secretary  of 
State,  seemed  at  first  doubtful  of  this.  In  his  proclamation  of 
July  20,  1868,  announcing  the  adoption  of  the  Amendment,  after 
saying  that  in  six  States  ratification  had  been  had  "  by  newly 
constituted  and  established  bodies  avowing  themselves  to  be  and 
acting  as  the  legislatures  respectively  "  of  those  States,  and  after 
calling  attention  to  the  fact  that  Ohio  and  Xew  Jersey  had  with- 
drawn their  ratifications,  he  said,  hypothetically :  "If  the  reso- 
lutions of  the  legislatures  of  Ohio  and  Xew  Jersey  ratifying  the 
aforesaid  Amendment  are  to  be  deemed  as  remaining  in  full 
force  and  effect,  notwithstanding  the  subsequent  resolutions  of 
those  States  which  purport  to  withdraw  the  consent  of  those 
States  from  such  ratification,  then  the  aforesaid  Amendment  has 

9  Jameson,  §§  577-584. 


Amendment   of   the    Federal   Constitution.  523 

been  ratified  in  the  manner  heretofore  mentioned,  and  so  has 
become  valid  to  all  intents  and  purposes  as  part  of  the  Constitu- 
tion of  the  United  States." 

Later,  however,  in  a  second  proclamation  Seward  declared  in 
a  positive  manner  the  Amendment  to  have  been  adopted. 

The  requirement  of  ratification  by  the  States  lately  in  rebellion 
of  the  Fourteenth  Amendment  as  a  condition  precedent  to  their 
readmission  to  full  constitutional  rights  as  member  States  of  the 
Union,  was  a  requirement  the  imposition  of  which  by  Congress  it 
is  difficult  constitutionally  to  justify.  But,  a  State  having 
yielded  and  ratified,  the  Supreme  Court  expressed  the  view  in 
White  v.  Hart10  that  a  claim  could  not  be  made  that  the  ratifica- 
tion was  void  because  given  under  coercion.11 

10  13  Wall.  646;  20  L.  ed.  085. 

ii  The  court  say:  "  The  third  of  these  propositions  is  clearly  unsound,  and 
requires  only  a  few  remarks.  Congress  authorized  the  State  to  form  a  new- 
constitution  and  she  elected  to  proceed  within  the  scope  of  the  authority 
confened.  The  result  was  submitted  to  Congress  as  a  voluntary  and  valid 
offering,  and  was  so  received  and  so  recognized  in  the  subsequent  action  of 
that  body.  Upon  the  same  grounds  she  might  deny  the  valfdity  of  her  ratifi- 
cation of  the  constitutional  amendments.  The  action  of  Congress  upon  the 
subject  cannot  be  inquired  into.  The  case  is  clearly  one  in  which  the  judicial 
is  bound  to  follow  the  action  of  the  political  department  of  the  government 
and  is  concluded  by  it." 


CHAPTER  XXXVII. 

CONGRESS  —  ITS  ORGANIZATION :   PRIVILEGES  OF  MEMBERS. 

§  228.  The  Name. 

The  first  section  of  Article  I  of  the  Constitution  provides  that 
"  all  legislative  powers  herein  granted  shall  be  vested  in  a  Con- 
gress of  the  United  States,  which  shall  consist  of  a  Senate  and 
House  of  Representatives."  Following  sections  of  this  article 
provide  for  the  composition  and  organization  of  these  two 
branches  of  the  national  legislature  and  enumerate  the  powers 
which  they  may  collectively  or  severally  exercise.  In  the  present 
chapter  we  shall  be  concerned  with  the  constitutional  provisions 
for  the  organization  of  Congress. 

The  term  "  Congress  "  is  an  old  one,  its  international  use  as 
the  title  of  formal  meetings  of  heads  of  sovereign  States  or  their 
representatives,  dates  from  the  seventeenth  century.1  In  America 
the  word  had  been  used  of  such  joint  conferences  as  the  colonies 
had  convened.  When  the  articles  of  consideration  were  drawn 
up,  the  term  was  applied  to  the  confederate  administrative  and 
law-making  body,  and,  as  was  but  natural,  the  same  name  was 
given  to  the  legislature  provided  for  in  the  Constitution  which 
replaced  the  Articles. 

§  229.  Qualifications  for  Senators  and  Representatives. 

It  is  required  by  the  Constitution  that  Representatives  shall 
have  attained  the  age  of  twenty-five  years,  have  been  seven  years 
citizens  of  the  United  States,2  and  be,  when  elected,  inhabitants 
of  the  State  in  which  they  are  chosen.3  Senators  are  required 
to  be  thirty  or  more  years  of  age,  to  have  been  nine  years  citizens 
of  the  United  States,  and  to  be,  when  elected,  inhabitants  of  the 
State  for  which  they  are  chosen.4 

1  Cf.  Reinsch,  American  Legislatures,  Chapter  I. 

2  This  requirement  was  satisfied  in  the  first  congress  by  assuming  that  the 
citizenship  demanded  could  be  dated  from  the  time  of  the  Articles  of  Con- 
federation, if  not  indeed,  from  the  Declaration  of  Independence. 

3  Art.  I,  Sec.  II,  CI.  2. 
*  Art.  I,  Sec.  II,  CI.  3. 

[524] 


Coxoress — Its  Organization.  ;.j:. 

It  is  furthermore  provided  by  the  Constitution  that  "no  per- 
son holding  any  ofrice  under  the  United  States  shall  be  a  member 
of  either  house  during  his  continuance  in  office."5 

Furthermore,  by  Section  3  of  the  Fourteenth  Amendment  it  is 
declared  that:  ";  Xo  person  shall  be  a  'Senator  or  Representative 
in  Congress,  or  elector  of  President  and  Vice-President,  or  hold 
any  office,  civil  or  military,  under  the  United  States,  or  under 
any  State,  who,  having  .previously  taken  an  oath,  as  a  member  of 
Congress,  or  as  an  officer  of  the  United  States,  or  as  a  member 
of  any  state  legislature,  or  as  an  executive  or  judicial  officer  of 
any  State,  to  support  the  Constitution  of  the  United  States,  shall 
have  engaged  in  insurrection  or  rebellion  against  the  same,  or 
given  aid  or  comfort  to  the  enemies  thereof.  But  Congress  may 
by  a  vote  of  two-thirds  of  eaeh  House  remove  such  disability."8 

It  will  be  observed  that  habitancy  and  not  mere  residency  m 
a  State  is  required.  Habitancy  implies  greater  permanency  than 
does  residence.  UA  man's  residence  is  often  a  legal  conclusion 
from  statements  showing  his  intention.  Habitancy  is  a  physical 
fact  which  may  be  proved  by  eye  witnesses."7 

The  constitutional  provision  is  that  habitancy  shall  exist  at 
the  time  of  election.  It  is  thus  legally  possible  for  a  member 
of  CflBgmr,  after  election,  to  become  the  inhabitant  of  another 
State  without  thereby  forfeiting  his  seat. 

£  230.  Qualifications  Determined  by  Congress. 

Though  essentially  a  judicial  function  the  conclusive  deter- 
mination as  to  whether  the  constitutional  qualifications  for  mem- 
bership have  been  met  is,  by  the  Constitution,  placed  in  the  hands 
of  each  of  the  two  Houses  of  Congress.8  It  thus  happens  that 
though  neither  House  may  formally  impose  qualifications  addi- 

6  Art.  I,  Sec.  6,  CI.  2. 

congress  has  removed  this  disability  from  all,  or  practically  all.  persons 
suffering  from  tliem  because  of  participation  in  the  Civil  War.  Delegates 
from  the  Territories  who  are  given  the  right  to  sit  hut  not  to  vote  in  the  House 
of  Representatives  have  their  qualifications  and  terms  of  ofrice  determined  by 
Congress. 

7  Foster,  Commentaries,  §  G2. 

8  "Eaeh  IT.  use  shall  he  the  judge  of  the  elections,  returns  a»d  qualifications 
of  its  own  mcml>ers."     Ait.  T.  See.  IV.  (1.  1. 


526  United  States  Constitutional  Law. 

tional  to  those  mentioned  in  the  Constitution,  or  waive  those  that 
are  mentioned,  each  may  in  practice  do  either  of  these  things. 
For  example,  in  1900,  the  House  excluded  Brigham  H.  Roberts 
of  Utah  because  of  various  charges  brought  against  him,  none  of 
which,  however,  alleged  a  constitutional  disqualification.  In  this 
case  it  was  strenuously  argued  that,  having  the  necessary  consti- 
tutional disqualifications,  Roberts  should  be  admitted  to  member- 
ship, and  then,  if  the  House  should  so  see  fit,  he  might  be 
expelled  by  a  two-thirds  vote.9  For  the  right  to  expel,  it  is 
admitted,  is  absolute,  and  may  be  exercised  for  any  reason  which 
the  House  thinks  adequate.:10  The  House,  however,  by  a  large 
majority  voted  to  exclude  Roberts.'11 

It  is  plain  that  no  State  may  add  qualifications  to  those 
required  by  the  Constitution  of  members  of  Congress.  Thus  in 
1856,  the  governor  of  a  State  having  refused  to  issue  credentials 
to  the  rival  claimants,  because  they  were  disqualified  under  pro- 
visions of  the  state  constitution  to  membership  in  the  House,  the 
House  seated  the  one  shown  prima  facie  by  official  statement  to 
have  a  majority  of  votes.12  Similar  action  was  taken  by  the 
Senate  the  same  year. 

The  disqualification  of  a  member  of  Congress,  it  has  been  held, 
does  not  entitle  the  one  receiving  the  next  highest  vote,  to  his 
seat.13 

Members  who  have  already  taken  the  oath  may,  it  has  been 
held,  be  unseated  by  a  majority  vote.  That  is  to  say,  disqualifi- 
cation being  shown  the  process  of  expulsion,  which  requires  a 
two-thirds  vote,  is  not  needed.14 

9  "  Each  House  may  .  .  .  with  the  concurrence  of  two-thirds,  expel  a 
member."    Art.  I,  Sec.  V,  CI.  2. 

Win  Patterson's  case  (Hinds.  §  1276)  it  was  held  that  a  resolution  of  ex- 
pulsion would  not  be  entertained  after  the  term  of  the  accused  Senator  had 
expired.  In  Whittemore's  case  it  was  held  that  one  who,  to  escape  expulsion, 
had  resigned,  would,  upon  re-election,  be  refused  his  seat. 

ii  For  a  full  statement  of  the  arguments  pro  and  contra  in  this  important 
case  see  House  Rpt.  85,  56th  Cong.,  1st  Sess.  See  also  Hinds,  Precedents  of 
the  House  of  Representatives,  Vol.  I. 

12  Hinds,  op.  cit.  §  415;  Story,  Commentaries,  §§  623-629. 

»  Hinds,  §  424. 

"Hinds,  §  424. 


Congress  —  Its  Organization.  527 

In  contested  election  cases  each  House  may  examine  witnesses, 
compel  testimony  and  the  production  of  papers,  and  punish  wit- 
nesses for  contempt.15  Imprisonment  for  contempt  must,  how- 
ever, cease  with  the  adjournment  of  the  Congress  which  orders 
it,  for  with  the  dissolution  of  that  body  its  authority  necessarily 
ceases.16 

In  the  case  of  In  Re  Loney'7  it  was  held  that  a  notary  public 
or  other  state  officer  designated  by  Congress  to  take  depositions 
in  cases  of  contested  election  of  members  of  the  House  of  Repre- 
sentatives of  the  United  States  performs  this  function  under  the 
authorityvof  Congress  and  not  under  that  of  the  State;  and  that 
perjury  alleged  to  have  been  committed  before  such  notary  or 
other  state  official  is  exclusively  cognizable  in  the  federal  courts. 
In  its  opinion  the  court  say:  "Any  one  of  the  officers  designated 
by  Congress  to  take  the  depositions  of  such  witnesses  (whether 
he  is  appointed  by  the  United  States  .  .  .  or  by  the  State 
.  .  .  )  performs  this  function,  not  under  any  authority  derived 
from  the  State,  but  solely  under  the  authority  conferred  upon 
him  by  Congress,  and  in  a  matter  concerning  the  government  of 
the  United  States.  .  .  .  There  are  cases  (the  most  familiar 
of  which  are  those  of  making  and  uttering  counterfeit  money) 
in  which  the  same  act  may  be  a  violation  of  the  laws  of  the  State, 
as  well  as  of  the  laws  of  the  United  States,  and  may  be  punish- 
able by  the  judiciary  of  either  [citing  cases].  But  the  power 
of  punishing  a  witness  for  testifying  falsely  in  a  judicial  pro- 
ceeding belongs  peculiarly  to"  the  government  in  whose  tribunals 
that  proceeding  is  had.  It  is  essential  to  the  impartial  and 
efficient  administration  of  justice  in  the  tribunals  of  the  nation 
that  witnesses  should  be  able  to  testify  freely  before  them  unre- 
strained by  legislation  of  the  State,  or  by  fear  of  punishment  in 
the  state  courts.  ...  A  witness  who  gives  his  testimony, 
pursuant  to  the  Constitution  and  laws  of  the  United  States,  in 
a  case  .pending  in  a  court  or  other  judicial  tribunal  of  the  United 

HKilbourn  v.  Thompson,  103  U.  S.  168;  26  L.  ed.  377. 

"  Anderson  v.  Dunn,  6  Wh.  204 ;  5  L.  ed.  242. 

17  134  U.  S.  372;   10  Sup.  Ct.  Rep.  384;  33  L.  ed.  049. 


528  United  States  Constitutional  Law. 

States,  whether  he  testifies  in  the  presence  of  that  tribunal,  or 
before  any  magistrate  or  officer  (either  of  the  Nation  or  of  the 
State)  designated  by  act  of  Congress  for  the  purpose,  is  account- 
able for  the  truth  of  his  testimony  to  the  United  States  only;  and 
perjury  committed  in  so  testifying  is  an  offense  against  the  public 
justice  of  the  United  States,  and  within  the  exclusive  jurisdic- 
tion of  the  courts  of  the  United  States,  and  cannot  therefore  be 
punished  in  the  courts  of  Virginia."18 

§  231.  Disqualification  of  Congressmen  to  Hold  Federal  Office. 

The  second  clause  of  Section  VI  of  Article  I  of  the  Constitu- 
tion provides  that:  "  Xo  Senator  or  Representative  shall  —  dur- 
ing the  time  for  which  he  was  elected  —  be  appointed  to  any 
civil  office  under  the  authority  of  the  United  States,  which  shall 
have  been  created,  or  the  emoluments  whereof  shall  have  been 
increased,  during  such  time,  and  no  person  holding  any  office 
under  the  United  States  shall  be  a  member  of  either  House  dur- 
ing his  continuance  in  office." 

In  pursuance  of  this  provision  members  of  Congress  have  had 
their  seats  declared  vacant  for  accepting  commissions  as  officers 
of  the  volunteer  and  regular  army  forces  of  the  United  States. 
Visitors  to  academies,  directors  and  trustees  of  public  federal  in- 
stitutions appointed  by  law,  are  not  held  disqualified.  In  a  House 
Report  on  this  subject,19  the  committee  say ;  "  It  is  not  contended 
that  every  position  held  by  a  member  of  Congress  is  an  office 
within  the  meaning  of  the  Constitution,  even  though  the  term 
office  may  usually  be  applied  to  many  of  these  positions.  .  .  . 
In  United  States  v.  Hartwell  (6  Wall.  3S5 ;  IS  L.  ed.  830),  it  is 
laid  down  that  '  an  office  is  a  public  station  or  employment  con- 
ferred by  the  appointment  of  government.  The  term  embraces  the 
ideas  of  tenure,  duration,  emolument,  and  duties.'  Elsewhere  it 
is  held  that  an  office  is  '  an  employment  on  behalf  of  the  govern- 
ment, in  any  station  of  public  trust,  nor  merely  transient,  ceca- 
ls For  historical  accounts  of  the  manner  in  which  contested '  elections  in 
Congress  have  been  considered,  see  Journal  of  Social  Science,  1870,  pp.  56,  and 
Political  Science  Qvarterhi,  XX,  421. 
"55th  Cong.  3d  Sess.     Ept.  No.  2205. 


CovoHM  —  It.s  Ok<.amzatiox.  529 

sional  or  incidental'  (20  Johns.  Rep.  402).  A  careful  considera- 
tion of  all  the  positions  above  referred  to  will  show  that  they  are 
merely  transient,  occasional  or  incidental  in  their  nature,  and 
none  of  them  possess  the  elements  of  duration,  tenure  or  emolu- 
ment. All  of  these  appointees  were  hut  instruments  to  procure 
detailed  information  for  the  better  information  and  guidance  of 
Congress  and  are  wholly  lacking  in  the  essential  elements  of  an 
office  within  the  meaning  of  the  Constitution." 

The  House  has  also  held  that  a  contractor  under  the  Federal 
Government  is  not  constitutionally  disqualified  as  a  member. 

A  state  office  does  not  disqualify  for  membership.  Thus,  for 
example,  Senator  La  Follette  held  the  office  of  Governor  of  Wis- 
consin until  January,  1906,  although  the  Senate,  after  his  elec- 
tion to  that  body,  met  in  extra  session  the  preceding  March. 
Senator  La  Follette  did  not,  however,  appear  in  the  Senate  or 
take  the  oath  until  January  4,  1906. 

Alcmbers-elect,  it  has  been  held,  may  defer  until  the  meeting 
of  Congress  their  choice  between  their  seats  and  incompatible 
offices  to  which  they  may  have  been  elected  or  appointed;* 

The  seat  of  a  member  who  has  accepted  an  incompatible  office 
may  be  declared  vacant  by  a  majority  vote.21 

§  232.  Ineligibility  of  Congressmen  to  Offices,  the  Emoluments 
of  Which  Have  Been  Increased. 
In  1909  it  having  been  announced  that  President-Elect  Taft 
intended  to  nominate  Senator  Philander  C.  Knox  as  Secretary  of 
State,  it  was  pointed  out  that  he  was  constitutionally  ineligible, 
the  salary  of  the  Secretary's  office  having  been  increased  by  a 
law  passed  while  Knox  was  a  Senator.  In  order  to  render  Sena- 
tor Knox  eligible  to  the  Secretaryship  an  act  was  passed  by  Con- 
gress reducing  the  salary  in  question  to  that  which  it  had  been 
before  the  increase  mentioned.  The  strict  constitutionality  of 
this  action  by  Congress  was  questioned  by  many.22 

20  Hinds,  §  402. 
:i  Hinds,  §  504. 

--In  a  minority  report  from  a  House  Committee    (House  Rpt.,  No.  2155, 
60th  Cong.,  2d  Ben.)   it  is  said:     "  We  do  not  believe  that  a  provision  of  the 

34 


530  United  States  Constitutional  Law. 

§  233.  Privileges  of  Members  of  Congress. 

The  first  clause  of  the  sixth  section  of  Article  I  of  the  Con- 
stitution provides :  "  The  Senators  and  Representatives  .  . 
shall  in  all  cases,  except  treason,  felony  and  breach  of  the  peace, 
be  privileged  from  arrest  during  their  attendance  at  the  session 
of  their  respective  houses,  and  in  going  to  and  returning  from 
the  same ;  and  for  any  speech  or  debate  in  either  house,  they  shall 
not  be  questioned  in  any  other  place." 

The  exemption  from  arrest  thus  given  is  now  of  little  impor- 
tance as  arrest  of  the  person  is  now  almost  never  authorized  except 
for  crimes  which  fall  within  the  classes  exempt  from  the  privi- 
lege. The  words  "  treason,  felony  and  breach  of  the  peace  "  have 
been  construed  to  mean  all  indictable  crimes.23 

Having  decided  in  Kilbourn  v.  Thompson24  that  the  investiga- 
tion, in  aid  of  which  Kilbourn's  testimony  had  been  demanded, 
was  in  reference  to  a  matter  concerning  which  Congress  had  not 
the  power  to  legislate,  and  that,  therefore,  the  order  for  Kilbourn's 

Constitution  that  is  so  clear  and  emphatic  should  be  sought  to  be  annulled  or 
suspended  in  the  manner  attempted  by  the  passage  of  this  bill.  The  emolu- 
ments of  the  Secretary  of  State  were  increased  by  the  Fifty-ninth  Congress. 
The  occupant  of  that  office  has  been  regularly  receiving  these  emoluments. 
We  believe  that  the  mischief  undertaken  to  be  provided  against  by  this  pro- 
vision of  the  Constitution  clearly  embraces  the  act  of  appointing  one  of  the 
said  United  States  Senators  to  the  office  of  the  Secretary  of  State.  It  might 
be  said,  and  truly,  that  this  mischief  is  remote  in  any  event;  however  this 
may  be,  it  contained  sufficient  danger  for  the  framers  of  the  Constitution  to 
provide  against  it.  If  the  Constitution  prohibits  it,  surely  it  can  not  be 
argued  that  if  this  prohibition  can  be  so  easily  overcome  by  the  device  of 
reducing  the  salary  below  what  in  the  judgment  of  the  Congress  it  should 
be,  with  the  hope  which  in  this  case  is  almost  a  certainty,  of  the  salary  being 
restored  to  its  present  amount,  that  that  would  not  be  clear  evasion  of  the 
plain  provision  of  the  Constitution.  The  office  of  the  Secretary  of  State  will 
be  probably  held  for  eight  years  by  its  next  incumbent,  and  a  designing 
Senator,  which  the  Constitution  seeks  to  provide  against,  could  reasonably 
anticipate,  that  although  his  salary  would  be  temporarily  reduced  in  the 
closing  years  of  his  senatorial  term,  at  the  expiration  of  that  term  it  would, 
through  his  influence,  be  restored  to  the  amount  to  which  it  was  placed  by 
the  Congress  of  which  he  was  a  member,  and  thus  he  would  receive  the  higher 
salary  from  at  least  two  to  probably  eight  years." 

23  Williamson  v.  United  States,  207  U.  S.  425;  28  Sup.  Ct.  Rep.  1C3;  52 
L.  ed.  278;  Hinds,  Precedents  of  the  House  of  Representatives,  §  2673. 

24  103  U.  S.  168;  26  L.  ed.  377.     , 


Congress  —  Its  Organization.  531 

imprisonment  had  been  void  for  want  of  jurisdiction,  the  court 
go  on  to  consider  the  personal  liability  of  the  individual  mem- 
bers voting  for  and  participating  in  the  commitment  for  con- 
tempt. Having  pointed  out  that  these  individual  members  had 
undoubtedly,  by  their  speeches,  reports  and  notes,  approved  and 
authorized  the  imprisonment  of  Kilbourn,  and  having  quoted  the 
constitutional  clause  with  reference  to  the  exemption  of  members 
of  Congress  from  arrest,  and  from  being  questioned  as  to  any 
speech  or  debate,  the  court  ask :  "  Is  what  the  defendants  did 
in  the  matter  in  hand  covered  by  this  provision  ?  Is  a  resolution 
offered  by  a  member,  speech  or  debate,  within  the  meaning  of 
the  clause  I  Does  its  protection  extend  to  the  report  which  they 
made  to  the  House,  of  Kilbourn's  delinquency  ?  To  the  expression 
of  opinion  that  he  was  in  contempt  of  the  authority  of  the  House? 
To  their  vote  in  favor  of  the  resolution  under  which  he  was 
imprisoned?  If  these  questions  be  answered  in  the  affirmative, 
they  cannot  be  brought  in  question  for  their  action  in  a  court  of 
justice  or  in  any  other  place.  And  yet  if  a  report,  or  a  resolu- 
tion, or  a  vote,  is  not  speech  or  debate,  of  what  value  is  the  con- 
stitutional protection  ?  We  may  perhaps  find  some  aid  in  ascer- 
taining the  meaning  of  this  provision,  if  we  can  find  out  its 
source,  and  fortunately  in  this  there  is  no  difficulty.  For  while 
the  framers  of  the  Constitution  did  not  adopt  the  lex  et  con- 
suetudo  of  the  English  Parliament  as  a  whole,  they  did  incor- 
porate such  parts  of  it,  and  with  it  such  privileges  of  Parlia- 
ment, as  they  thought  proper  to  be  applied  to  the  two  Houses  of 
Congress." 

After  reviewing  the  English  case  of  Stockdale  v.  Hansard,  and 
the  early  Massachusetts  case  of  Coffin  v.  Coffin25  and  the  dictum 
of  Story  in  his  Commeivtaries  (§  8G6)  the  court  say:  "  It  seems 
to  us  that  the  views  expressed  in  the  authorities  we  have  cited 
aro  sound  and  are  applicable  to  this  case.  It  would  be  a  narrow 
view  of  the  constitutional  provision  to  limit  it  to  words  spoken 
in  debate.  The  reason  of  the  rule  is  as  forcible  in  its  applica- 
tion to  written  reports  presented  in  that  body  by  its  committees, 

25  4  Mass.  1. 


532  United  States  Constitutional  Law. 

to  resolutions  offered,  which,  though  in  writing,  must  be  repro- 
duced in  speech,  and  to  the  act  of  voting,  whether  it  is  done 
vocallv  or  by  passing  between  the  tellers.  In  short,  to  things 
generally  done  in  a  session  of  the  House  by  one  of  its  members 
in  relation  to  the  business  before  it.  It  is  not  necessary  to  decide 
here  that  there  may  not  be  things  done,  in  the  one  House  or 
the  other,  of  an  extraordinary  character,  for  which  the  members 
who  take  part  in  the  act  may  be  held  legally  responsible.  If  we 
could  suppose  the  members  of  these  bodies  so  far  to  forget  their 
high  functions  and  the  noble  instrument  under  which  they  act 
as  to  imitate  the  Long  Parliament  in  the  execution  of  the  Chief 
Magistrate  of  the  Xation,  or  to  follow  the  examine  of  the  French 
Assembly  in  assuming  the  function  of  a  court  for  capital  punish- 
ment, we  are  not  prepared  to  say  that  such  an  utter  perversion  of 
their  powers  to  a  criminal  purpose  would  be  screened  from  pun- 
ishment by  the  constitutional  provision  for  freedom  of  debate. 
In  this,  as  in  other  matters  which  have  been  pressed  on  our 
attention,  we  prefer  to  decide  only  what  is  necessary  to  the  case 
in  hand,  and  we  think  the  plea  set  up  by  those  of  the  defendants 
who  were  members  of  the  House  is  a  good  defense." 

As  regards  the  freedom  of  the  members  of  Congress  from 
prosecution  for  words  spoken  in  either  House,  no  comment  is 
needed,  except  to  observe  that  this  privilege  does  not  extend  to 
the  outside  publication  by  a  member  of  libelous  matter  spoken 
in  Congress.23  As  Story  observes :  "  Xo  man  ought  to  have  a 
right  to  defame  others  under  color  of  a.  performance  of  the  duties 
of  his  office.  And  if  he  does  so  in  the  actual  discharge  of  his 
duties  in  Congress,  that  furnishes  no  reason  why  he  should  be 
enabled  through  the  medium  of  the  press  to  destroy  the  reputa- 
tion and  invade  the  repose  of  other  citizens."  27 

It  may  further  be  observed  that  the  constitutional  immunity 
extends  to  witnesses  appearing  before  committees  of  Congress, 
and,  probably,  to  petitions,  and  other  addresses  to  that  body.25 

26 King  v.  Creory.  1  Maule  &  Selw.  273. 

27  Cuwmenlnrics,   §  S63. 

28  See  Columbia  Lair  h'rv.  Feb.  lf)10.  the  excellent  paper  of  Mr.  Van  Vecliten 
Veeder,  entitled  "Absolute  Immunity  in  Defamation:  Legislative  and  Exec- 
utive Proceedings." 


chapter  xxxvni. 

ELECTION    OF   MEMBERS   OF   COXGRESS.l 
§  234.  Their  Apportionment  among  the  States. 

Ike  Constitution  provides  that  the  House  of  Representatives 
shall  be  composed  of  members  chosen  every  second  year  hy  the 
people  of  the  several  States,  and  that  they  shall  be  apportioned 
among  the  States  according  to  their  several  populations,  the 
whole  number  of  persons  in  each  State,  excluding  Indians  not 
taxed,  being  counted.2  The  Fourteenth  Amendment  provides, 
however,  that  "  when  the  right  to  vote  at  any  election  for  the 
choice  of  electors  for  President  and  Vice-President  of  the  United 
States,  representatives  in  Congress,  the  executive  or  judicial 
officers  of  a  State,  or  the  members  of  the  legislature  thereof,  is 
denied  to  any  of  the  male  inhabitants  of  such  State,  being  twenty- 
one  years  of  age  and  citizens  of  the  United  States,  or  in  any  way 
abridged  except  for  participation  in  rebellion  or  other  crime,  the 
basis  of  representation  therein  shall  be  reduced  in  the  proportion 

i  The  Senate  and  House  of  Representatives  are  spoken  of  as  two  "  Houses  " 
of  Congress,  the  Senate  being  often  termed  the  Upper  House,  and  the  House 
of  Representatives,  the  Lower  House,  or.  simply  the  "House." 

2  The  original  provision  of  the  Constitution  (Art.  8,  Sec.  88,  CI.  3)  was  as 
follows:  "Representatives  and  direct  taxes  shall  be  apportioned  among  the 
several  States  which  may  be  included  within  this  Union,  according  to  their 
respective  numbers,  which  sliall  be  determined  by  adding  to  the  whole  number 
of  free  persons  including  those  bound  to  service  for  a  term  of  years,  and 
excluding  Indians  not  taxed,  three-fifths  of  all  other  persons.  The  actual 
enumeration  shall  lie  made  within  three  years  after  the  first  meeting  of  the 
(  oagnaa  -f  the  United  States,  and  within  every  subsequent  terra  of  ten  years, 
in  such  manner  as  they  shall  by  law  direct.  The  number  of  Representatives 
shall  not  exceed  one  for  every  thirty  thousand,  but  each  State  shall  have  at 
least  one  Representative:  and  until  such  enumeration  shall  be  made,  the  Stat© 
of  Xew  Hampshire  shall  be  entitled  to  choose  three,  Massachusetts  eight, 
Rhode  Island  and  Providence  Plantations  one,  Connecticut  five,  New  York  6ix, 
New  Jersey  four,  Pennsylvania  eight,  Delaware  one.  Maryland  six,  Virginia 
ten,  North  Carolina  five.  South  Carolina  five,  and  Georgia  three." 

P>y  section  2  of  the  Fourteenth  Amendment,  it  is  provided  that  "  Repre- 
sentatives shall  be  apportioned  among  the  several  States  according  to  their 
respective  numbers,  counting  the  whole  number  of  persons  in  each  State, 
excluding  Indiana  not  taxed. 

[533] 


534  United  States  Constitutional  Law. 

which  the  number  of  such  male  citizens  shall  bear  to  the  whole 
number  of  male  citizens  twenty-one  years  of  age  in  such  State." 

This  amendment  thus  leaves  it  within  the  constitutional  power 
of  the  States  to  place  such  restrictions  as  they  may  choose  upon 
the  exercise  of  the  suffrage  within  their  limits,  but  subject  to  a 
reduction  of  the  number  of  representatives  to  which  they  are 
entitled  in  Congress  to  the  extent  to  which  the  right  to  vote  is 
denied  to  adult  male  inhabitants,  citizens  of  the  United  States. 

The  Fifteenth  Amendment,  adopted  two  years  later,  places  the 
absolute  prohibition  upon  the  States  that  "  the  right  of  citizens 
of  the  United  States  to  vote  shall  not  be  denied  or  abridged  .  .  . 
on  account  of  race,  color  or  previous  condition'  of  servitude." 

By  some  it  has  been  argued  that  the  Fifteenth  Amendment  is 
to  be  construed  as  repealing  the  clause  of  the  Fourteenth  Amend- 
ment relating  to  the  reduction  of  the  representation  of  the  States, 
in  that  it  renders  constitutionally  impossible  the  action  which 
it  was  the  object  of  that  clause  to  deter -the  States  from  taking. 
This  argument,  though  it  has  had  the  support  of  eminent  author- 
ity,3 cannot  be  considered  a  sound  one,  for  the  clause  of  the 
Fourteenth  Amendment  provides  for  a  reduction  not  simply  in 
cases  where  adult  male  inhabitants,  citizens  of  the  United  States, 
are  denied  the  right  to  vote  because  of  race,  color  or  previous 
condition  of  servitude,  but  for  any  cause  whatever,  saving  for 
participation  in  rebellion  or  other  crime. 

As  is  well  known,  most  of  the  Southern  States  have,  by  various/ 
provisions  adopted  in  their  several  constitutions,  in  large  measure 
eliminated  the  negro  vote.  This  has  led  to  a  certain  amount  of 
agitation  both  in  the  public  press  and  in  Congress  for  the  enforce- 
ment of  the  reduction  of  representation  clause  of  the  Fourteenth 
Amendment,  but  as  yet  no  decisive  steps  have  been  taken.4 

3  E.  g.  Senator  John  Sherman,  Recollections,  I,  450.  See  also  article  by  Mr. 
Emmet  O'Neal  in  Xorih  American  Review,  Vol.  181,  p.  530. 

*  In  the  platform  of  the  Republican  party  adopted  by  the  National  Conven- 
tion in  1904  it  was  declared:  "We  favor  such  congressional  action  as  shall 
determine  whether,  by  special  discriminations,  the  elective  franchise  in  any 
State  has  been  unconstitutionally  limited,  and,  if  such  be  the  case,  we  demand 
that  representation  in  Congress  and  in  the  Electoral  College  shall  be  propor- 
tionally reduced,  as  directed  by  the  Constitution  of  the  United  States." 


Election  of  Members  of  Congress.  535 

In  various  States  of  the  Union  property,  educational,  and  other 
qualirications  upon  the  right  to  vote  have  been  established.  These 
limitations  upon  adult  male  suffrage  have  not,  however,  been  held 
to  warrant  an  application  of  the  reduction  of  representation 
clause  of  the  Fourteenth  Amendment.  To  quote  the  words  of 
Cooley:  "To  require  the  payment  of  a  capitation  tax  is  no 
denial  of  suffrage,  it  is  demanding  only  the  preliminary  perform- 
ance of  public  duty  and  may  be  classed,  as  may  also  presence  at 
the  polls,  with  registration,  or  the  observance  of  any  other  pre- 
liminary to  insure  fairness  and  protect  against  fraud.  Xor  can 
it  be  said  that  to  require  ability  to  read  is  any  denial  of  suffrage. 
To  refuse  to  receive  one's  vote  because  he  was  born  in  some  par- 
ticular country  rather  than  elsewhere,  or  because  of  his  color,  or 
because  of  any  natural  quality  or  peculiarity  which  it  would  be 
impossible  for  him  to  overcome,  is  plainly  a  denial  of  suffrage. 
But  ability  to  read  is  within  the  power  of  any  man,  it  Is  not 
difficult  to  attain  it,  and  it  is  no  hardship  to  require  it  On  the 
contrary  the  requirement  only  by  indirection  compels  one  to 
appropriate  a  personal  benefit  he  might  otherwise  neglect.  It 
denies  to  no  man  the  suffrage,  but  the  privilege  is  freely  tendered 
to  all,  subject  only  to  a  condition  that  is  beneficial  in  its  perform- 
ance and  light  in  its  burden.  If  a  property  qualification,  or  the 
payment  of  taxes  upon  property  when  one  has  none  to  be  taxed, 
is  made  a  condition  to  suffrage,  there  may  be  room  for  more 
question."  5 

§  235.  The  Mode  of  Apportionment. 

In  the  first  Congress  representatives  were  apportioned  among 
the  States  according  to  a  rough  estimate  as  to  their  respective 
populations.  Since  that  time  new  apportionments  have  been 
based  upon  the  figures  of  the  decennial  censuses. 

6  Principles  of  Constitutional  Law,  edition  of  1898,  p.  292.  The  state  courts 
have  very  generally  held  that  reasonable  registration  and  other  laws  for  the 
protection  of  the  ballot  against  fraud,  intimidation,  ignorance,  etc.,  are  not 
unconstitutional  under  the  state  Constitution  as  adding  to  the  qualifications 
laid  down.     Cf.  Cooley,  Const.  Linu,  7th  ed.,  Ch.  XVIII. 


5S6  United  States  Constitutional  Law. 

The  first  apportionment  bill  passed  by.  Congress  was  vetoed  by 
President  "Washington  as  unconstitutional  in  that  it  provided 
for  a  representative  for  each  thirty  thousand  of  population,  the 
minimum  fixed  by  the  Constitution,  and  also  an  additional  num- 
ber to  the  States  having  the  largest  fractions  left  over  after  the 
division  was  made.6 

Until  1842  fractions  of  populations  left  over  by  the  dividing 
of  the  populations  of  the  several  States  by  the  number  selected 
for  determining  the  number  of  representatives,  went  unrepre- 
sented. Since  that  time,  however,  where  these  fractions  have 
exceeded  a  half  of  the  ratio  number,  an  additional  representative 
has  been  allowed. 

§  236.  Congressional  Districts. 

The  division  of  the  States  into  congressional  districts  for  the 
purpose  of  selecting  representatives  is  left  to  the  state  legislatures. 
Congress  has,  however,  provided  that  these  districts  shall  be  com- 
posed of  contiguous  territory.  It  has  become  an  established  rule 
of  political  practice,  though  not  one  of  constitutional  obligation, 
that  a  representative  shall  be  a  resident  of  the  district  in  which 
he  is  elected.  Representatives  are,  however,  occasionally  elected 
by  districts  in  which  they  do  not  reside,  and  in  such  cases  there 
is  no  question  as  to  their  right  to  sit  In  certain  cases,  congress- 
men at  large,  that  is,  from  the  whole  State,  are  elected.  This 
happens  when  a  State  has  not  been  divided  into  districts,  or  where, 
after  a  reapportionment,  an  additional  representative  or  repre- 
sentatives have  been  allotted  a  State  and  that  State  has  not  re- 

6 "  Construing  the  Constitution  to  authorize  a  process  by  which  the  whole 
number  of  representatives  should  be  ascertained  on  the  whole  population  of 
the  United  States,  and  afterwards  '  apportioned  among  the  several  States 
according  to  their  respective  numbers,'  the  Senate  [in  an  amendment  which 
the  House  accepted]  applied  the  number  thirty  thousand  as  a  divisor  to  the 
total  population,  and  taking  the  quotient  which  was  one  hundred  and  twenty, 
Ui  the  number  of  representatives  given  by  the  ratio  which  had  been  adopted 
in  the  House  where  the  bill  originated,  they  apportioned  that  number  among 
the  several  States  by  that  ratio,  until  as  many  representatives  as  it  would 
give  were  allotted  to  each.  The  residuary  numbers  were  then  distributed  among 
the  States  having  the  highest  fractions."  Marshall,  Life  of  Washington,  V, 
319.    Cf.  Foster,  Commentaries  on  the  Constitution,  I,  395. 


Election  of  ItfgMglBfi  of  Co.ngkfss.  ;,:;; 

districted  itself  so  as  to  provide  the  necessary  additional  districts. 
In  such  cases,  of  course,  only  the  additional  representatives  are 

elected  at  large. 

§  237.  Members  of  the  House  of  Representatives:  by  Whom 
Elected. 
The  Constitution  provides  that  for  the  election  of  Representa- 
tives to  Congress,  "  the  electors  in  each  State  shall  have  the  quali- 
fications requisite  for  electors  of  the  most  numerous  branch  of  the 
state  legislature."  This  places  the  determination  of  who  may  ex- 
ercise the  suffrage  wholly  within  the  control  of  the  States,  except 
for  the  restriction  placed  upon  them  by  the  Fifteenth  Amendment. 
There  thus  exists  the  rather  curious  fact  that  the  National  Gov- 
ernment though  able  to  control  its  citizenship  by  naturalization 
is  not  able  to  confer  the  suffrage  for  the  election  even  of  its  own 
officials;  whereas  the  States  may  confer,  and,  indeed,  in  a  number 
of  instances  have  conferred  this  suffrage  upon  persons  not  citi- 
zens of  the  United  States.7 

§  238.  The  Right  to  Vote  for  Representatives  not  a  Necessary 
Incident  of  National  Citizenship. 

That  the  suffrage  is  not  a  necessary  incident  of  federal  citizen- 
ship is  declared  by  the  Supreme  Court  in  Minor  v.  Happersett,8  a 
case  in  which  it  was  argued  that  a  woman,  a  citizen  of  the  United 
States,  was,  as  such,  entitled  to  a  vote.  In  this  case  the  direct 
question  was  presented  whether  all  citizens  are  necessarily  voters. 
This  the  court  answered  by  declaring  that  the  United  States  has 
no  voters  of  its  own  creation  in  the  States.  After  going  on  to 
show  that  at  the  time  the  Constitution  was  adopted  and  ever 
since,  the  right  of  suffrage  in  the  States  had  not  been  coextensive 
with  that  of  citizenship,   the  opinion  concludes:     "For  nearly 

'  E.  g.,  upon  aliens  who  have  declared  their  intention  to  become  cit 
but  have  not  yet  taken  out  their  final  papers.  Hare  [American  Constitutional 
l.d'r.  p.  520)  denies  the  constitutionality  of  this.  He  says:  "  Reading  the 
Constitution  in  the  light  of  the  Fifteenth  Amendment,  the  just  inference 
would  seem  to  be  that  national  citizenship  is  a  prerequisite  to  the  right  of 
suffrage."    This  view  is  plainly  incorrect. 

8  21  Wall.  102;  22  L.  ed.  627. 


538  United  States  Constitutional  Law. 

ninety  years  the  people  have  acted  upon  the  idea  that  the  Con- 
stitution, when  it  conferred  citizenship,  did  not  necessarily  con- 
fer the  right  of  suffrage.  .  .  .  Being  unanimously  of  the 
opinion  that  the  Constitution  of  the  United  States  does  not  con- 
fer the  right  of  suffrage  upon  anyone,  and  that  the  constitutions 
and  laws  of  several  States  which  commit  that  important  trust  to 
men  alone  are  not  necessarily  void,  we  affirm  the  judgment  of  the 
court  below." 

It  cannot  be  said,  therefore,  that  the  right  to  vote  either  at 
federal  or  state  elections  is  in  any  case  determined  directly  by 
federal  law.  Even  the  Fifteenth  Amendment  does  not  itself  give 
to  any  one  the  right  In  United  States  v.  Reese9  the  court  say: 
'*  The  Fifteenth  Amendment  does  not  confer  the  right  of  suffrage 
upon  any  one.  It  prevents  the  States,  or  the  United  States,  how- 
ever, from  giving  preference,  in  this  particular,  to  one  citizen 
over  another,  on  account  of  race,  color,  or  previous  condition  of 
servitude.  ...  It  follows  that  the  Amendment  has  invested 
the  citizens  of  the  United  States  with  a  new  constitutional  right 
which  is  within  the  protecting  power  of  Congress.  That  right  is 
exemption  from  discrimination  in  the  exercise  of  the  elective 
franchise  on  account  of  race,  color  or  previous  condition  of 
servitude." 

And  in  United  States  v.  Cruikshank10  the  court  say :  "  In 
Minor  v.  Happersett  (21  Wall.  162;  22  L.  ed.  627)  we  decided 
that  the  Constitution  of  the  United  States  has  not  conferred  the 
right  of  suffrage  upon  any  one,  and  that  the  United  States  have 
no  voters  of  their  own  creation  in  the  States.  In  United  States 
v.  Reese  (92  U.  S.  214;  23  L.  ei  563),  just  decided,  we  held  that 
the  Fifteenth  Amendment  has  invested  the  citizens  of  the  United 
States  with  a  new  constitutional  right,  which  is,  exemption  from 
discrimination  in  the  exercise  of  the  elective  franchise  on  account 
of  race,  color,  or  previous  condition  of  servitude.  From  this  it 
appears  that  the  right  of  suffrage  is  not  a  necessary  attribute  of 
national  citizenship;  but  that  exemption  from  discrimination  in 

9  92  U    S.  214;  23  L.  ed.  563. 

10  92  U.  S.  542;  23  L.  ed.  588. 


Election  of  Members  of  Congress.  53«j 

the  exercise  of  that  right  on  account  of  race,  etc.,  is.  The  right 
to  vote  in  the  States  comes  from  the  States;  but  the  right  of  ex- 
emption from  the  prohibited  discrimination  comes  from  the 
United  States." 

In  a  much  later  case,  Pope  v.  Williams,11  the  court  again  say: 
"  The  privilege  to  vote  in  any  State  is  not  given  by  the  federal 
Constitution  or  by  any  of  its  Amendments." 

In  Xeal  v.  Delaware,12  a  case  decided  but  a  little  later,  the 
court,  however,  point  out  that  the  effect  of  the  Amendment  by 
abolishing  ipso  facto  all  limitations  in  state  laws  and  constitutions 
founded  upon  race,  color,  or  previous  condition  of  servitude,  may 
in  effect  operate  to  qualify  certain  persons  to  vote  who  otherwise 
would  not  have  the  right.  The  opinion  says :  "  Beyond  all  ques- 
tion the  adoption  of  the  Fifteenth  Amendment  had  the  effect,  in 
law,  to  remove  from  the  state  constitution,  or  render  inoperative, 
that  provision  which  restricts  the  right  of  suffrage  to  the  white 
race.  .  .  .  There  is,  then,  an  excision  or  erasure  of  the  word 
'  white'  in  the  qualification  of  voters  in  this  State;  and  the  Con- 
stitution is  now  to  be  construed  as  if  such  word  had  never  been 
there." 

Although,  as  appears  from  the  foregoing,  the  right  of  deter- 
mining the  conditions  upon  which  the  suffrage  is  granted  lies  ex- 
clusively within  the  discretion  of  the  several  States,  subject  only 
to  the  limitation  of  the  Fifteenth  Amendment,  it  may  happen 
that  state  suffrage  laws  may  be  rendered  invalid  because  in  viola- 
tion of  certain  other  general  limitations  laid  upon  the  States. 
Thus,  for  example,  a  disfranchising  law,  operating  as  to  particular 
individuals  as  a  bill  of  attainder,  or  as  an  ex  post  facto  law,  or  as 
tending  to  destroy  a  republican  form  of  government  in  the  State, 
or  as  favoring  the  citizens  of  certain  .States  above  those  of  other 
States  would  probably  be  held  void. 

In  Pope  v.  Williams13  the  court  say :  "  It  is  unnecessary  in 
this  case  to  assert  that  under  no  conceivable  state  of  facts  could  a 
state  statute  in  regard  to  voting  be  regarded  as  an  infringement 

n  H)3  U.  S.  621 ;  24  Sup.  Ct.  Rep.  573;  48  L.  ed.  817. 

12  103  U.  S.  370 ;  26  L.  ed.  567. 

is  1<>3  U.  S.  621 ;  24  Sup.  Ct.  Rep.  573;  48  L.  ed.  817. 


540  United  States  Constitutional  Law. 

upon,  or  a  discrimination  against,  the  individual  rights  of  a  citizen 
of  the  United  States  removing  into  the  State,  and  excluded  from 
voting  therein  by  state  legislation.  The  question  might  arise  if 
an  exclusion  from  the  privilege  of  voting  were  founded  upon  the 
particular  State  from  which  the  person  came,  excluding  from  that 
privilege,  for  instance,  a  citizen  of  the  United  States  coming  from 
Georgia  and  allowing  it  to  a  citizen  of  the  United  States  coming 
from  Xew  York  or  any  other  State.  In  such  case  an  argument 
might  be  urged  that,  under  the  Fourteenth  Amendment  of  the 
federal  Constitution,  the  citizen  from  Georgia  was,  by  the  state 
statute,  deprived  of  the  equal  protection  of  the  laws.  Other  ex- 
treme cases  might  be  suggested." 

In  this  case  the  court  held  valid  a  state  law  requiring  persons 
coming  into  the  State  to  make  a  declaration  of  their  intention  of 
becoming  citizens  and  residents  of  the  State  before  they  could 
claim  the  right  to  be  registered  as  voters.  The  court  say:  "  The 
statute,  so  far  as  it  provides  conditions  precedent  to  the  exercise 
of  the  elective  franchise  within  the  State,  by  persons  coming 
therein  to  reside  ...  is  neither  an  unlawful  discrimination 
against  any  one  in  the  situation  of  the  plaintiff  in  error  nor  does 
it  deny  to  him  the  equal  protection  of  the  laws,  nor  is  it  repugnant 
to  any  fundamental  or  inalienable  rights  of  citizens  of  the  United 
States,  or  a  violation  of  any  implied  guaranties  of  the  federal 
Constitution." 

§  239.  Though  Determined  by  State  Law,  the  Right  to  Vote  for 
Representatives  is  a  Federal  Right. 
A  distinction  is  to  be  made  between  the  right  to  vote  for  a  Rep- 
resentative to  Congress  and  the  conditions  upon  which  that  right 
is  granted.  In  the  preceding  section  it  has  been  shown  that  the 
right  to  vote  is  conditioned  upon  and  determined  by  state 
law.  But  the  right  itself,  as  thus  determined,  is  a  federal  right. 
That  is  to  sayj  the  right  springs  from  the  provision  of  the  federal 
Constitution  that  Representatives  shall  be  elected  by  those  who 
have  the  right  in  each  State  to  vote  for  the  members  of  the  most 
numerous  branch  of  the  state  legislature.     The  Constitution  thus 


Election  of  Hembeks  of  (uxoijess.  541 

gives  the  right  but  accepts,  as  its  own,  the  qualifications  which 
the  States  severally  see  fit  to  establish  with  reference  to  the  elec- 
tion of  the  most  numerous  branch  of  their  several  state  legislatures. 
This  is  the  doctrine  laid  down  by  the  Supreme  Court  in  Ex  parte 
Yarbrough14  in  which  they  say:  "But  it  is  not  correct  to  .-ay 
that  the  right  to  vote  for  a  member  of  Congress  does  not  depend 
upon  the  Constitution  of  the  United.  States.  The  office,  if  it  be 
properly  called  an  office,  is  created  by  that  Constitution  and  by 
that  alone.  It  also  declares  how  it  shall  be  filled,  namely,  by 
election.  Its  language  is :  '  The  House  of  Representatives  shall 
be  composed  of  members  chosen  every  second  year  by  the  people 
of  the  several  States,  and  the  electors  in  each  State  shall  have  the 
qualifications  requisite  for  the  electors  of  the  most  numerous 
branch  of  the  state  legislature.'  (Article  I,  Section  2.)  The  States 
in  prescribing  the  qualifications  of  voters  for  the  most  numerous 
branch  of  their  own  legislatures,  do  not  do  this  with  reference  to 
fhe  election  of  members  of  Congress.  Xor  can  they  prescribe  the 
qualifications  for  those  eo  nomine.  They  define  who  are  to  vote 
for  the  popular  branch  of  their  own  legislature,  and  the  Constitu- 
tion of  the  United  States  says  the  same  persons  shall  vote  for  mem- 
bers of  Congress  in  that  State.  It  adopts  the  qualification  thus 
furnished  as  the  qualification  of  its  own  electors  for  members  of 
Congress.  It  is  not  true,  therefore,  that  members  of  Congress  owe 
their  right  to  vote  to  the  state  law  in  any  sense  which  makes  the 
exercise  of  the  right  depend  exclusively  on  the  law  of  the 
State."  ■ ^^__^ 

■  110  IT.  S.  651 ;  4  Sup.  Ct.  Rep.  152;  28  L.  ed.  274. 

is  The  opinion  continues:  "  Counsel  for  petitioners,  seizing  Tipon  the  expres- 
sion found  in  the  opinion  of  the  court  in  the  ease  of  Minor  v.  Happersett  (21 
Wall.  162:  22  L.  ed.  027)  that  "the  Constitution  of  the  United  States  does 
not  confer  the  right  of  suffrage  upon  any  one,"  without  reference  to  the  con- 
nection in  which  it  fa  Mel,  iini-ts  that  the  voters  in  this  sense  do  not  owe 
their  right  to  vote  in  any  s"nse  to  that  instrument.  But  the  court  was  com- 
batting the  argument  that  this  right  was  conferred  on  all  citiz-ii*.  and  there- 
fore upon  women  as  well  as  men.  In  opposition  to  that  idea,  it  was  said  the 
Constitution  adopts  as  the  qualification  for  voter*  of  members  of  Congress 
that  which  prevails  in  the  State  where  the  voting  is  to  be  ioae;  therefore, 
said  the  opinion,  the  right  is  not  definitely  conferred  on  any  person  <>r  class 
of  persons  by  the  C  n  alone.  becaOM  you  haw  t>  look  to  the  !:• 


542  United  States  Constitutional  Law. 

In  Wiley  v.  Sinkler,10  an  action  brought  in  one  of  the  federal 
circuit  courts  against  the  board  of  managers  of  a  general  state 
election  to  recover  damages  in  the  sum  of  twenty-five  thousand 
dollars  for  wrongfully  rejecting  the  plaintiff's  vote  for  a  member 
of  the  House  of  Representatives  of  the  United  States.  The  de- 
fendants demurred  on  the  grounds  that  the  court  had  no  jurisdic- 
tion because  it  did  not  affirmatively  appear  on  the  face  of  the 
complaint  that  a  federal  question  was  involved,  and  because  the 
verdict  for  an  amount  sufficient  to  give  the  court  jurisdiction 
would  be  excessive.  Upon  error  to  the  federal  Supreme  Court, 
that  tribunal  held  that  a  federal  right  was  directly  involved  for 

the  State  for  the  description  of  the  class.  But  the  court  did  not  intend  to 
say  that  when  the  class  or  the  person  is  thus  ascertained,  his  right  to  vote 
for  a  member  of  Congress  was  not  fundamentally  based  upon  the  Constitution, 
which  created  the  office  of  member  of  Congress,  and  declared  it  should  be 
elective,  and  pointed  to  the  means  of  ascertaining  who  should  be  electors. 
The  Fifteenth  Amendment  of  the  Constitution,  by  its  limitation  on  the  power 
of  the  States  in  the  exercise  of  their  right  to  prescribe  the  qualifications  of 
voters  in  their  own  elections  and  by  its  limitation  of  the  power  of  the  United 
States  over  that  subject,  clearly  shows  that  the  right  of  suffrage  was  con- 
sidered to  be  of  supreme  importance  to  the  National  Government,  and  was 
not  intended  to  be  left  within  the  exclusive  control  of  the  States.  It  is  in 
the  following  language:  Sec.  1.  The  right  of  citizens  of  the  United  States  to 
vote  shall  not  be  denied  or  abridged  by  the  United  States  or  by  any  State,  en 
account  of  race,  color,  or  previous  condition  of  servitude.  Sec.  2.  The  Con- 
gress shall  have  power  to  enforce  this  article  by  appropriate  legislation. 

"  While  it  is  quite  true,  as  was  said  by  this  court  in  United  States  v.  Reese 
(92  U.  S.  214;  23  L.  ed.  563)  that  this  article  gives  no  affirmative  right  to 
the  colored  men  to  vote,  and  is  designed  primarily  to  prevent  discrimination 
against  him  whenever  the  right  to  vote  may  be  granted  to  others,  it  is  easy 
to  see  that  under  some  circumstances  it  may  operate  as  the  immediate  source 
of  a  right  td  vote.  In  all  cases  where  the  former  slave-holding  States  had 
not  removed  from  their  Constitutions  the  words  '  white  men  '  as  a  qualifica- 
tion for  voting,  this  provision  did,  in  effect,  confer  on  him  the  right  to  vote, 
because,  being  paramount  to  the  state  law,  and  a  part  of  the  state  law.  it 
annulled  the  discriminating  word  '  white,'  and  thus  left  him  in  the  enjoyment 
of  the  same  right  as  white  persons.  And  such  would  be  the  effect  of  any 
further  constitutional  provision  of  a  State  which  should  give  the  right  of 
voting  exclusively  to  white  people,  whether  they  be  men  or  women.  Xeal  v. 
Delaware,  103  U.  S.  370;  26  L.  ed.  567.  In  such  cases  this  Fifteenth  Article 
of  Amendment  does,  proprio  vigore,  substantially  confer  on  the  negro  the  right 
to  vote,  and  Congress  has  the  power  to  protect  and  enforce  that  right." 

"179  U.  S.  58;  21   Sup.  Ct.  Rep.  17;  45  L.  ed.  84. 


Election  of  Members  of  Coxgkess.  543 

"  the  right  to  vote  for  members  of  the  Congress  of  the  United 
States  is  not  derived  merely  from  the  Constitution  and  laws  of 
the  State  in  which  they  are  chosen,  but  has  its  foundation  in  the 
Constitution  of  the  United  States."  "  The  amount  of  damages 
claimed,  the  court  held,  to  be  "  peculiarly  appropriate  for  the  de- 
termination of  a  jury,"  and  that  no  opinion  of  the  court  would 
"  justify  it  in  holding  that  the  amount  in  controversy  was  in- 
sufficient to  support  the  jurisdiction  of  the  circuit  court" 18 

§  240.  Federal  Control  of  Congressional  Elections. 

According  to  the  Constitution,  "  The  times,  places  and  manner 
of  holding  elections  for  Senators  and  Representatives,  shall  be  pre- 
scribed in  each  State  by  the  legislature  thereof;  but  the  Congress 
may  at  any  time  by  law  make  or  alter  such  regulations,  except  as 
to  the  places  of  choosing  Senators." 

In  this  clause  sufficient  authority  is  given  the  Federal  Govern- 
ment, should  it  so  see  fit,  to  assume  entire  and  exclusive  control 
of  the  elections  of  Senators  and  Representatives;  to  establish  by 
acts  of  Congress  the  regulations  governing  the  same,  and  to  apply 
and  enforce  these  regulations  by  federal  officials  and  tribunals. 

The  United  States  government  did  not  exercise  any  of  the 
power  thus  given  it  until  1842  when,  conceiving  that  the  system 
employed  in  some  States  of  electing  all  the  members  of  the  House 
of  Representatives  upon  a  general  ticket  (that  is,  one  according 
to  which  each  voter  voted  for  as  many  Representatives  as  there 
were  Representatives  to  be  elected  from  his  State)  gave  an  undue 
power  to  the  political  party  in  the  majority  in  the  State,  Congress 
enacted  a  law  declaring  that  each  member  should  be  elected  by  a 
separate  district  composed  of  contiguous  territory.19  In  1866  an 
act  was  passed  regulating  the  election  of  Senators  by  the  state 

"Citing  Ex  parte  Yarbrcugh,  110  U.  S.  651;  4  Sup.  Ct.  Rep.  152;  28  L.  ed. 
274. 

is  As  to  constitutionality  of  federal  regulation  and  protection,  and  the 
federal  character  of  the  right  to  vote  for  Representatives  to  Congress,  see 
In  re  Coy.  127  U.  S.  731;  8  Sup.  Ct.  Rep.  1263;  32  L.  ed.  274;  Mason  v. 
Missouri,  ITS  V.  S.  328;  21  Sup.  Ct.  Rep.  125;  45  L.  cd.  214;  SwafTord  v. 
Tcmpleton,   185   V.  S.   487;    22  Sup.  Ct.   Rep.  783;   46  L.  ed.   1005. 

"85  Stat,  at  L.  491. 


544  United  States  Constitutional  Law. 

legislatures.  In  1873  Congress  again  acted,  providing  by  law  that 
the  election  of  Representatives  in  all  of  the  States  should  occur 
upon  the  same  day,  namely,  the  Tuesday  following  the  first  Mon- 
day in  November,  1876,  and  on  the  same  day  of  every  second  year 
thereafter.20  In  like  manner  Congress  fixed  the  day  for  election 
of  presidential  electors. 

By  act  of  1872,  amended  by  that  of  February  14,  1899,  it  is 
provided  that  "  all  votes  for  Representatives  in  Congress  must  be 
by  written  or  printed 'ballot  or  voting  machine,  the  use  of  which 
has  been  duly  authorized  by  the  state  law ;  and  all  votes  receive! 
or  recorded  contrary  to  this  section  shall  be  of  no  effect." 

Other  federal  laws  prohibit  interference  in  elections  by  federal 
troops,  or  army  or  navy  officers  ;23  and  by  the  law  of  1870  it  is  pro- 
vided generally  at  all  elections  that  no  persons  shall  be  prevented 
from  voting  because  of  race,  color  or  previous  condition  of 
servitude.22 

A  general  law  enacted  in  1870  (amended  in  1871),  entitled  a 
law  "  To  enforce  the  Rights  of  Citizens  of  the  United  States  to 
Vote  in  the  Several  States  of  the  Union,"  while  not  itself  estab- 
lishing .positive  regulations  of  its  own,  provided  for  the  appoint- 
ment of  marshals  and  supervisors  of  elections  to  see  to  it  that  the 
state  laws  governing  elections  of  Representatives  to  Congress  were 
fairly  and  effectively  executed.23 

This  right  of  oversight  was,  however,  resisted  by  some  of  the 
States  upon  the  ground  that,  though  the  United  States  might 
establish  regulations  of  its  own,  appoint  officials  to  execute  them, 
and  compel  the  officials  of  the  State  as  well  as  private  citizens  to 
conform  to  them,  it  had  no  right  or  power  to  control  state  officials 
in  the  execution  of  the  laws  enacted  by  their  own  States,  even 

20  By  act  of  March  3,  1S75,  this  provision  was  made  "  not  to  apply  to  any 
State  that  has  not  yet  changed  its  day  of  election  and  whose  Constitution 
must  be  amended  in  order  to  effect  a  change  in  the  day  of  election  of  state 
officers  in  said  State."  The  elections  in  the  States  of  Maine,  Vermont  and 
Oregon  at  present  are  held  under  this  provision. 

2iEev.  Stat.,  §§  2003,  5530,  5528. 

22  Rev.  Stat ,  §  2004.  This  law  was  of  course  enacted  under  authority 
given  by  the  Fifteenth  Amendment. 

23  This  law  was  repealed  February  8,   1894. 


Elixtiox  of  Mmmmum  of  Congress.  545 

when  those  laws  related  to  the  election  of  members  of  the  Xa- 
ticE'al  Legislature. 

This  controversy  reached  a  judicial  settlement  in  the  case  of  Ex 
parie  Siebold,24  decided  in  1ST9.  This  suit  arose  ont  of  the  ar- 
rest of  certain  state-appointed  judges  of  elections  who  were 
charged  with  interfering  with  and  resisting  supervisors  and 
deputy  marshals  holding  appointment  from  the  Federal  Govern- 
ment under  the  act  of  1870.  In  behalf  of  the  defendants  it  was 
maintained  that  the  federal  officials  had  been  without  constitu- 
tional authority,  and,  therefore,  that  the  resistance  offered  them 
was  not  a  legal  offense. 

The  argument  is  stated  by  Justice  Field  in  his  dissenting 
opinion.  lie  there  takes  the  position  that  in  granting  to  the  Fed- 
eral Government  the  authority  to  enact  laws  regulating  the  elec- 
tions of  Senators  and  Representatives,  the  intention  of  the  framers 
of  the  Constitution  had  been  simply  to  authorize  the  General  Gov- 
ernment to  legislate  in  case  the  state  government  refused  to  take 
any  steps  whatever.  He  said :  "  The  act  was  designed  simply 
to  give  to  the  General  Government  the  means  of  its  preservation 
against  a  possible  dissolution  from  the  hostility  of  the  States  to 
the  election  of  Representatives,  or  from  their  neglect  to  provide 
suitable  means  for  holding  such  elections."  As  evidence  that  this 
was  the  intention,  Madison's  remarks  in  the  Constitutional  Con- 
vention -and  Hamilton's  in  Th<e  Federalist  were  cited.  So  long 
as  the  state  hnvs  are  retained  and  administered  by  state  officials, 
they  cannot,  argued  Field,  be  properly  regarded  as  federal  laws, 
and  Congress  cannot  provide  for  their  federal  supervision.  "  The 
act  of  Congress,"  he  said,  '  assens  a  power  inconsistent  with  and 
destructive  of  the  independence  of  the  States.  The  right  to  con- 
trol their  own  officers,  to  prescribe  the  duties  they  shall  perform, 
without  the  supervision  or  interference  of  any  other  authority, 
and  the  penalties  to  which  they  shall  be  subjected  for  a  violation 
of  duty  is  essential  to  that  independence.5,  After  quoting  from 
Kentucky  v.  Deimison,23  Field  continues:     "  If  it  be  incompetent 

»  100  TJ.  S.  371 ;  25  L.  ed.  717. 
»24  How.  66;   16  L.  «d.  717. 

...» 


546  United  States  Constitutional  Law. 

for  the  Federal  Government  to  enforce  by  coercive  measures  the 
performance  of  a  plain  duty,  imposed  by  a  law  of  Congress  upon 
the  executive  officer  of  a  State  [the  rendition  of  fugitives  from 
justice]  it  would  seem  to  be  equally  incompetent  for  it  to  enforce 
by  similar  measures  the  performance  of  a  duty  imposed  upon  him 
by  a  law  of  a  State.  If  Congress*  cannot  impose  upon  a  state 
officer,  as  such,  the  performance  of  any  duty,  it  would  seem  logic- 
ally to  follow  that  it  cannot  subject  him  to  punishment  for  the 
neglect  of  such  duties  as  the  State  may  impose.  It  cannot  punish 
for  the  non-performance  of  a  duty  which  it  cannot  prescribe. 
.  .  .  "Whenever,  therefore,  the  Federal  Government,  instead  of 
acting  through  its  own  officers,  seeks  to  accomplish  its  purposes 
through  the  agency  of  officers  of  the  States,  it  must  accept  the 
agency  with  the  conditions  upon  which  the  officers  are  permitted 
to  act.  .  .  .  When,  therefore,  the  Federal  Government  de- 
sires to  compel,  by  coercive  measures  and  punitive  sanctions,  the 
performance  of  any  duties  devolved  upon  it  by  the  Constitution, 
it  must  appoint  its  own  officers  and  agents,  upon  whom  its  power 
can  be  exerted.  .  .  .  Whatever  Congress  may  properly  do 
touching  the  regulations  [governing  elections]  one  of  two  things 
must  follow:  either  the  altered  or  the  new  regulation  remains  a 
state  law,  or  it  becomes  a  law  of  Congress.  If  it  remains  a  state 
law,  it  must,  like  other  laws  of  the  State,  be  enforced  through  its 
instrumentalities  and  agencies,  and  with  the  penalties  which  it 
may  see  fit  to  prescribe,  and  without  the  supervision  or  interfer- 
ence of  federal  officials.  If,  on  the  other  hand,  it  becomes  a  law 
of  Congress,  it  must  be  carried  into  execution  by  such  officers  and 
with  such  sanctions  as  Congress  may  designate.  .  .  .  With 
respect  to  the  election  of  Representatives,^  Field  concludes,  u  as 
long  as  Congress  does  not  adopt  regulations  of  its  own  and  enforce 
them  through  federal  officers,  but  permits  the  regulations  of  the 
States  to  remain,  it  must  depend  for  a  compliance  with  f  lem  upon 
the  fidelity  of  the  state  officers  and  their  responsibility  to  their 
own  government.  All  the  provisions  of  the  law,  therefore,  author- 
izing supervisors  and  marshals  to  interfere  with  those  officers  in 
the  discharge  of  their  duties  and  providing  for  criminal  prosecu- 


Election  of  Members  of  Congress.  547 

tions  against  them  in  the  federal  courts,  are,  in  my  judgment, 
clearly  in  conflict  with  the  Constitution." 

The  majority  of  the  court,  however,  in  their  opinion  say: 
"  There  is  no  declaration  that  the  regulations  shall  be  made  either 
wholly  by  the  state  legislatures  or  wholly  by  Congress.  If  Con- 
gress does  not  interfere,  of  course  they  may  be  made  wholly  by 
the  State;  but  if  it  chooses  to  interfere,  there  is  nothing  in  the 
words  to  prevent  its  doing  so,  either  wholly  or  partially.  On  the 
contrary,  the  necessary  implication  is  that  it  may  do  either.  It 
may  either  make  the  regulations,  or  it  may  alter  them.  If  it 
only  alters,  leaving,  as  manifest  convenience  requires,  the  general 
organization  of  the  polls  to  the  State,  there  results  a  necessary 
co-operation  of  the  two  governments  in  regulating  the  subject. 
But  no  repugnance  in  the  system  of  regulations  can  arise  thence; 
for  the  power  of  Congress  over  the  subject  is  paramount  It  may 
be  exercised  as  and  when  Congress  sees  fit  to  exercise  it.  When 
exercised,  the  action  of  Congress,  so  far  as  it  extends  and  conflicts 
with  the  regulations  of  the  State,  necessarily  supersedes  them. 
This  is  implied  in  the  power  '  to  make  or  alter.'  " 

As  to  the  supposed  incompatibility  of  independent  sanctions 
and  punishments  imposed  by  the  two  governments,  for  the  enforce- 
ment of  the  duties  required  of  their  respective  officers  of  election, 
and  for  their  protection  in  the  .performance  of  those  duties,  the 
court  say :  w  While  the  State  will  retain  the  power  of  enforcing 
such  of  its  own  regulations  as  are  not  superseded  by  those  adopted 
by  Congress,  it  cannot  be  disputed  that  if  Congress  has  power  to 
make  regulations  it  must  have  the  power  to  enforce  them,  not  only 
by  punishing  the  delinquency  of  officers  appointed  by  the  United 
States,  but  by  restraining  and  punishing  those  who  attempt  to  in- 
terfere with  them  in  the  performance  of  their  duties ;  and  if,  as 
we  have  shown,  Congress  may  revise  existing  regulations,  and  add 
to  or  alter  the  same  as  far  as  it  deems  expedient,  there  can  be  a3 
little  question  that  it  may  impose  additional  penalties  for  the  pre- 
vention of  frauds  committed  by  the  state  officers  in  the  elections, 
or  for  their  violation  of  any  duty  relating  thereto,  whether  arising 
from  the  common  law  or  from  any  other  law,  state  or  national. 


548  United  States  Constitutional  Law. 

"Why  not  ?  .  .  .  It  is  objected  that  Congress  has  no  power  to 
enforce  state  laws  or  punish  state  officers,  especially  has  no  power 
to  punish  them  for  violating  the  laws  of  their  -own  State.  As  a 
general  proposition  this  is,  undoubtedly,  true;  but  when,  in  the 
performance  of  their  functions,  state  officers  are  called  upon  to 
fulfil  duties  which  they  owe  to  the  United  States  as  well  as  to  the 
State,  has  the  former  no  means  of  compelling  such  fulfilment  ? 
Yet  that  is  the  case  here.  It  is  the  duty  of  the  States  to  elect  Rep- 
resentatives to  Congress.  The  due  and  fair  election  of  these 
Representatives  is  of  vital  importance  to  the  United  States.  The 
Government  of  the  United  States  is  no  less  concerned  in  the  trans- 
action than  the  state  government  is.  It  certainly  is  not  obliged  to 
stand  by  as  a  passive  spectator,  when  duties  are  violated  and  out- 
rageous frauds  are  committed.  It  is  directly  interested  in  the 
faithful  performance,  by  the  officers  of  elections,  of  their  respect- 
ive duties.  Those  duties  are  owed  as  well  to  the  United  States 
as  to  the  State,  This  necessarily  follows  from  the  mixed  nature 
of  the  transaction,  state  and  national.  A  violation  of  duty  is  an 
offense  against  the  United  States,  for  which  the  offender  is  justly 
amenable  to  that  government.  Xo  official  position  can  shelter 
him  from  this  responsibility.  In  view  of  the  fact  that  Congress 
has  plenary  and  paramount  jurisdiction  over  the  whole  subject, 
it  seems  almost  absurd  to  say  that  an  officer  who  receives  or  has 
custody  of  the  ballots  given  for  Representatives  owes  no  duty  to 
the  Xational  Government  which  Congress  can  enforce ;  or  that  an 
officer  who  stuffs  the  ballot  box  cannot  be  made  amenable  to  the 
United  States.  If  Congress  has  not,  prior  to  the  passage  of  the 
present  laws,  imposed  any  penalties  to  prevent  and  punish  frauds 
and  violations  of  duty  committed  by  officers  of  election,  it  has  been 
because  the  exigency  has  not  been  deemed  sufficient  to  require  it, 
and  not  because  Congress  had  not  the  requisite  power.  The  ob- 
jection that  the  laws  and  regulations,  the  violation  of  which  is 
made  punishable  by  the  Acts  of  Congress,  are  state  laws  and  have 
not  been  adopted  by  Congress,  is  no  sufficient  answer  to  the  power 
of  Congress  to  impose  punishment.  It  is  true  that  Congress  has 
not  deemed  it  necessarv  to  interfere  with  the  duties  of  the  ordi- 


Election  of  Members  of  Congress.  549 

nary  officers  of  election,  but  has  been  content  to  leave  them  as 
prescribed  by  state  laws.  It  has  only  created  additional  sanctions 
for  their  performance,  and  provided  means  for  supervision  in 
order  more  effectually  to  secure  such  performance.  The  imposi- 
tion of  punishment  implies  a  prohibition  of  the  act  punished. 
The  state  laws  which  Congress  sees  no  occasion  to  alter,  but  which 
it  allows  to  stand,  are  in  effect  adopted  by  Congress.  It  simply 
demands  their  fulfilment.  Content  to  leave  the  laws  as  they  are, 
it  is  not  content  with  the  means  provided  for  their  enforcement. 
It  provides  additional  means  for  that  purpose;  and  we  think  it  is 
entirely  within  its  constitutional  power  to  do  so.  It  is  simply  the 
exercise  of  the  power  to  make  additional  regulations." 

In  Ex  parte  Clarke26  and  Ex  parte  Yarbrough27  the  doctrine 
declared  in  Siebold's  case  is  reaffirmed,  the  court  saying  in  the 
latter  case,  "  If  this  government  is  anything  more  than  a  mere 
aggregation  of  delegated  agents  of  other  States  and  governments, 
each  of  which  is  superior  to  the  General  Government,  it  must  have 
the  power  to  protect  the  elections  from  violence  and  corruption." 

In  the  Yarbrough  case  the  law  of  IS 70  was  held  to  support  an 
indictment  charging  a  conspiracy  to  intimidate  a  citizen  of 
African  descent  from  voting.28      The  parties  interfered  with  some 

»  100  U.  S.  399;  23  L.  ed.  715. 

27  110  U.  B.  8§1  ;  4  Sup.  Ct.  Rep.  152;  28  L.  ed.  274. 

2S  "  i:»'\.  Stat.,  £  2208.  If  two  or  more  persons  conspire  to  injure,  oppress, 
threaten  or  intimidate  any  citizen  in  the  free  exercise  or  enjoyment  of  any 
right  or  privilege  secured  to  him  by  the  Constitution  or  laves  of  the  United 
States  or  because  of  his  having  so  exercised  the  same,  or  if  two  or  more  per- 
sons go  in  disguise  on  the  highway  or  ou  the  premises  of  another,  with  intent 
to  prevent  or  hinder  his  free  exercise  or  enjoyment  of  any  right  or  privilege 
so  secured,  they  shall  be  fined  not  more  than  $5,000  and  imprisoned  not 
more  than  ten  years;  and  shall,  moreover,  thereafter  be  ineligible  to  any 
office  or  place  of  honor,  profit  or  trust  created  by  the  Constitution  or  laws  of 
the  United  States." 

"  S  HBO.  If  two  or  more  persons  in  any  State  or  Territory  conspire  to 
prevent  by  force,  intimidation  or  threat,  any  citizen  who  is  lawfully  entitled 
to  vote,  from  giving  his  support  or  advocacy,  in  a  legal  manner,  toward  or 
in  favor  of  the  election  of  any  lawfully  qualified  person  as  an  elector  for 
President  or  Vice-President,  or  as  a  member  of  the  Congress  of  the  United 
States;  or  to  injure  any  citizen  in  person  or  property  on  account  of  such 
advocacy;  each  of  such  persons  shall   be  punished  by  a  fine  of  not  less  than 


550  United  States  Constitutional  Law. 

others  not  officers  of  the  United  States,  as  in  the  Siebold  case, 
but  this  difference,  the  court  held,  had  no  bearing  upon  the  consti- 
tutional power  of  the  Federal  Government  to  punish  those  in- 
terfering. 

"  The  power  in  either  case  arises  out  of  the  circumstances 
that  the  function  in  which  the  party  is  engaged  or  the  right 
which  he  is  about  to  exercise  is  dependent  on  the  laws  of  the 
United  States.  In  both  cases  it  is  the  duty  of  that  government  to 
see  that  he  may  exercise  this  right  freely  and  to  protect  him  from 
violence  while  so  doing  ©r  on  account  of  so  doing.  This  duty 
does  not  arise  solely  from  the  interest  of  the  party  concerned,  but 
from  the  necessity  of  the  government  itself,  that  its  service  shall 
be  free  from  the  adverse  influence  of  force  and  fraud  practised  on 
its  agents,  and  that  the  votes  by  which  its  members  of  Congress 
and  its  President  are  elected  shall  be  the  free  votes  of  the  electors, 
and  the  officers  thus  chosen  the  free  and  uncorrupted  choice  of 
those  who  have  the  right  to  take  part  in  that  choice." 

§  241.  Enforcement  Clause  of  the  Fifteenth  Amendment. 

By  the  second  section  of  the  Fifteenth  Amendment  Congress  is 
given  power  to  enact  laws  necessary  for  the  enforcement  of  the 
prohibition  expressed  in  the  first  section. 

The  federal  authority  thus  granted,  it  is  to  be  observed,  has 
reference  to  all  elections  whether  state  or  federal.  In  this  respect 
it  is  thus  much  broader  than  that  given  in  Section  IV  of  Article  I. 
In  other  respects,  however,  the  power  granted  is  much  narrower, 
for  it  authorizes  federal  intervention  only  in  cases  where  the  right 
to  vote  has  been  denied  o:-  abridged  on  account  of  race,  color,  or 
previous  condition  of  servitude.  Thus  in  United  States  v.  Reeser9 
an  act  of  Congress  which  made  it  a  crime  to  hinder,  delay  or  re- 
strict any  citizen  from  doing  any  act  to  qualify  him  to  vote  or 
from  voting  at  any  election,  was  held  void  because  its  operation 
was  not  confined  to  cases  in  which  the  interference  was  on  account 
of  race,  color,  or  previous  condition  of  servitude. 

$500  nor  more  than  $5,000,  or  by  imprisonment,  with  or  without  hard  labor, 
not  less  than  six  months  nor  more  than  six  years,  or  by  both  such  fine 
and  imprisonment." 

29  92  U.  S.  214;  23  L.  ed.  563. 


Election  of  Members  of  Congress.  551 

In  James  v.  Bowman30  it  was  finally  determined  by  the  Su- 
preme Court  that  the  prohibition  of  the  Fifteenth  Amendment  ap- 
plied not  to  private  but  only  to  state  action.  Therefore  the 
court  held  void  an  act  of  Congress  which  provided  for  the  punish- 
ment of  individuals  who  by  threats,  bribery  or  otherwise  should 
prevent  or  intimidate  others  from  exercising  the  right  of  suffrage 
as  guaranteed  by  the  Fifteenth  Amendment. 

After  reviewing  the  manner  in  which  the  prohibitions  of  the 
Fifteenth  Amendment  had,  by  judicial  construction,  been  held  to 
relate  to  state  action  only,  and  the  legislative  power  of  Congress 
under  the  enforcement  clause  of  that  Amendment  limited  to  the 
enactment  of  laws  providing  remedies  against  unconstitutional 
state  action,  the  court  in  its  opinion,  say :  "  These  authorities 
show  that  a  statute  [of  Congress]  which  purports  to  punish  purely 
individual  action  cannot  be  sustained  as  an  appropriate  exercise 
of  the  power  conferred  by  the  Fifteenth  Amendment  upon  Con- 
gress to  prevent  action  by  the  State  through  some  one  or  more 
of  its  official  representatives."  ^ 

§  242.  Disfranchisement  Clauses  of  the  Southern  States. 

As  has  been  before  adverted  to,  most,  if  not  all,  of  the  Southern 
States  in  which  the  negro  population  is  very  considerable,  have, 
by  means  of  constitutional  amendments  or  in  constitutions  newly 
adopted,  secured  in  effect  the  almost  total  disfranchisement  of 
their  colored  citizens.  This,  however,  has  been  done,  not  by  dis- 
franchisement provisions  expressly  directed  against  the  negroes, 
but  by  requiring  all  voters  to  be  registered,  and  placing  condi- 
tions upon  registration  which  very  few  negroes  are  able  to  meet, 
or,  at  any  rate,  to  satisfy  the  registration  officers  that  they  do 
meet  them. 

If  the  courts  may  freely  go  behind  the  terms  of  a  constitu- 
tional clause  to  discover  its  intent,  and  to  construe  it  by  that 
intent,  or  if  it  may  test  its  validity  by  its  actual  operation  in 
practice,  it  would  seem  that  a  possible  opport unity  is  afforded  for 

30  100  U.  S.  127;  23  Sup.  (t.  Rep.  678;  47  L.  ed.  070. 

31  In  this  case  it  is  also  held  that  "an  indictment  which  charges  no  dis- 
crimination on  account  of  race,  color  or  previous  condition  of  servitude, 
is  likewise  destitute  of  support  hy  such  Amendment." 


552  United  States  Constitutional  Law= 

holding  void  some  at  least  of  the  disfranchising  clauses  of  the 
constitutions  of  the  Southern  States.  As  yet,  however,  no  case 
has  heen  brought  before  the  Supreme  Court  in  which  the  court 
has  consented  to  make  this  examination.  As  to  the  circumstances 
under  which  the  court  will  consent  to  go  back  of  the  terms  of  a 
law,  to  determine  its  real  intent  and  effect,  two  interesting  cases 
are  Yick  Wo  v.  Hopkins32  and.  Williams  v.  Mississippi-33  In  the 
former  case  the  law  or  ordinance  in  question  was  held  void  in  that 
it  attempted  to  give  to  an  administrative  officer  an  arbitrary  dis- 
cretionary power,  and  also  in  that  an  actual  arbitrary  discriminat- 
ing use  of  that  authority  was  shown.  In  Williams  v.  Mississippi 
the  court  declined  to  hold  void  the  state  law  in  question,  the  law 
being  upon  its  face  not  in  violation  of  the  equal  protection  clause 
of  the  Fourteenth  Amendment,  and  no  discrimination  in  fact 
being  proved.  In  Yick  Wo  v.  Hopkins  the  court  say :  "  Though 
the  law  itself  be  fair  on  its  face  and  impartial  in  appearance,  yet. 
if  it  is  applied  and  administered  by  public  authority  with  an  eviL 
eye  and  an  unequal  hand,  so  as  practically  to  make  unjust  and 
illegal  discriminations  between  persons  in  similar  circumstances, 
material  to  their  rights,  the  denial  of  justice  is  still  within  the 
prohibition  of  the  Constitution."  This  doctrine,  however,  the 
court  say  in  the  Williams  case  is  not  applicable  to  the  Constitu- 
tion of  Mississippi  and  its  statutes.  "  They  do  not  on  their  face 
discriminate  between  the  races,  and  it  has  not  been  shown  that 
their  actual  administration  was  evil,  only  that  evil  was  possible 
under  them." 

In  Giles  v.  Harris,34  decided  in  1903,  a  colored  citizen  of  Ala- 
bama brought  an  action  in  a  federal  court  against  the  registrar 
his  county  to  compel  them  to  register  him  as  a  voter,  claiming  that 
the  provisions  of  the  Alabama  Constitution  upon  which  the  regis- 
trars based  their  refusal  to  register  him  were  in  violation  of  the 
equal  protection  clause  of  the  Fourteenth  Amendment  and  of  the 
prohibition  of  the  Fifteenth  Amendment.  The  Supreme  Court, 
to  which  the  case  finally  came  for  adjudication,  refused  the  relief 

32  118  U.  S.  356;  6  Sup.  Ct.  Rep.  1054:  30  L.  ed.   220. 
S3  170  U.  S.  213;  18  Sup.  Ct.  Rep.  583:  42  L.  wl.  1012. 
34  189  U.  S.  475;  23  Sup.  Ct.  Rep.  630:  47  L.  ed.  900. 


Election  of  Memleks  of  Congress.  553 

prayed,  saying :  "  The  difficulties  which  we  cannot  overcome  are 
two,  and  the  first  is  this:  The  plaintiff  alleges  that  the  whole 
registration  scheme  of  the  Alabama  Constitution  is  a  fraud  upon 
the  Constitution  of  the  United  States,  and  asks  us  to  declare  it 
void.  But,  of  course,  he  could  not  maintain  a  bill  for  a  mere 
declaration  in  the  air.  He  does  not  try  to  do  so,  but  asks  to  be 
registered  as  a  party  qualified  under  the  void  instrument.  If, 
then,  we  accept  the  conclusion  which  it  is  the  chief  purpose  of  the 
bill  to  maintain,  how  can  we  make  the  court  a  party  to  the  unlaw- 
ful scheme  by  accepting  it  and  adding  another  voter  to  its  fraudu- 
lent lists  ?  If  the  sections  of  the  Constitution  concerning 
registration  were  illegal  in  their  inception,  it  would  be  a  new  doc- 
trine in  constitutional  law  that  the  original  invalidity  could  be 
cured  by  an  administration  which  defeated  their  intent.  The 
other  difficulty  is  of  a  different  sort,  and  strikingly  reinforces  the 
argument  that  equity  cannot  undertake  now,  any  more  than  it 
has  in  the  past,  to  enforce  political  rights,  and  also  the  suggestion 
that  state  constitutions  were  not  left  unmentioned  in  section  1979 
by  accident.  In  determining  whether  a  court  of  equity  can  take 
jurisdiction,  one  of  the  first  questions  is  what  it  can  do  to  enforce 
any  order  that  it  may  make.  This  is  alleged  to  be  the  conspiracy 
of  a  State,  although  the  State  is  not  and  could  not  be  made  a 
party  to  the  bill.  (Hans  v.  Louisiana,  134  I".  S.  1 ;  10  &up.  Ct 
Rep.  504;  33  L.  ed.  842.)  The  circuit  court  has  no  constitutional 
power  to  control  its  action  by  any  direct  means.  And  if  we  leave 
the  State  out  of  consideration,  the  court  has  as  little  practical 
power  to  deal  with  the  people  of  the  State  in  a  body.  The  bill 
imports  that  the  great  mass  of  the  white  population  intends  to 
keep  the  blacks  iron  voting.  To  meet  such  an  intent  something 
more  than  ordering  the  plaintiff's  name  to  be  inscribed  upon  the 
lists  of  1902  will  be  needed.  If  the  conspiracy  and  intent  exist, 
a  name  on  a  piece  of  paper  will  not  defeat  them.  Unless  we  are 
prepared  to  supervise  the  voting  in  that  State  by  officers  of  the 
court,  it  seems  to  us  that  all  that  the  plaintiff  could  get  from 
equity  would  be  an  empty  form.  Apart  from  damages  to  the 
individual,  relief  from  a  great  political  wrong,  if  done,  as  alleged, 


554  United  States  Constitutional  Law. 

by  the  people  of  a  State  and  the  State  itself,  must  be  given  by 
them  or  by  the  legislative  and  political  department  of  the  govern- 
ment of  the  United  States."  35 

In  Giles  v.  Teasley,36  which  was  an  action  brought  to  recover 
damages  against  the  board  of  registrars  for  refusing  to  register 
the  plaintiff  as  a  qualified  elector  of  the  State.  The  Supreme 
Court  of  Alabama  held  that  if  the  provisions  of  the  state  consti- 
tution were  repugnant  to  the  Fifteenth  Amendment  they  were 
void  and  the  board  of  registrars  appointed  thereunder  had  no  legal 
existence  and  had  no  power  to  act  and  would  not  be  liable  for  a 
refusal  to  register  the  plaintiff;  while  on  the  other  hand,  if  the 
provisions  were  constitutional  the  registrars  acted  properly  there- 
under and  their  action  was  not  reviewable  by  the  courts.  The 
Supreme  Court  of  the  United  States  held  that  the  Alabama  court 
had  not  decided  any  federal  question  adversely  to  the  plaintiff, 
and,  therefore,  that  the  Supreme  Court  had  no  jurisdiction  to  re- 
view the  decision  of  the  state  court. 

In  Jones  v.  Montague,37  decided  in  1904,  the  court  declined  to 
review  the  dismissal  of  a  petition  for  a  writ  of  prohibition  to 
prevent  the  canvass  of  the  votes  cast  at  a  congressional  election 
(upon  claim  that  the  petitioners  had,  in  violation  of  the  federal 
Constitution,  been  denied  registration)  for  the  reason  that  the 
canvass  had  in  fact  been  already  made,  and  certificates  of  election 
issued  to  persons  who  had  been  recognized  by  the  House  of  Rep- 
resentatives as  members  thereof.  The  court  thus,  in  any  event, 
not  being  able  to  provide  any  relief,  the  case  became  merely  a 
moot  one,  and  as  such  was  dismissed. 

In  the  light  of  the  foregoing  unsuccessful  attempts  to  obtain 
from  the  Supreme  Court  relief  from  the  operation  of  the  disfran- 
chising clauses  of  the  state  constitutions  we  have  been  consider- 
ing, the  question  may  properly  be  asked  whether  it  is  constitution- 
ally possible  for  the  Congress  to  provide  by  legislation  means  by 
which  the  constitutionality  of  these  clauses  may  be  fairly  passed 
upon  by  the  courts  and  the  appropriate  relief  given.  It  would  seem 

33  Justices  Harlan,  Brewer,  and  Brown  dissented. 

36  193  U.  S.  146;  24  Sup.  Ct.  Bep.  350;  48  L.  ed.  655. 

37  194  U.  S.  147;  24  Sup.  Ct.  Bep.  611;  48  L.  ed.  913. 


Election  of  Members  of  Congress.  555 

that  much  might  be  done.  As  regards  congressional  elections.  Con- 
gress has,  as  we  have  seen,  plenary  powers  of  control,  and  could 
take  complete  charge  of  both  the  elections  and  the  registration  of 
the  voters.  In  such  case  the  federal  registrars  might  refuse  to 
register  white  voters  under  clauses  of  the  state  laws  which  they 
might  hold  to  be  in  violation  of  the  federal  Constitution,  and  the 
voters  so  refused  registration  would  have  to  seek  redress  in  the 
federal  courts  and  set  up  the  validity  of  these  state  laws.  As  re- 
gards state  elections  Congress  might  enact  laws  giving  to  federal 
courts  jurisdiction  of  actions  brought  against  state  registrations 
or  election  officials  who,  in  violation  of  federal  constitutional 
rights,  have  refused  registration  or  opportunity  to  vote  to  legally- 
qualified  .persons. 

Whether  or  not  such  legislation,  the  possibility  of  which  is 
above  suggested,  would  be  wise  is  a  question  by  itself.  Whether, 
if  wise,  it  could  be  efficiently  enforced  in  communities  where  it 
would  meet  strong  and  united  popular  opposition  is  another  ques- 
tion. "  In  the  last  analysis  obedience  not  voluntarily  given  must, 
for  the  most  part,  be  compelled  by  force  applied  through  the  in- 
strumentality of  criminal  prosecutions.  In  the  face  of  the  united 
and  passionate  opposition  of  the  white  people  of  the  South,  such 
prosecutions  in  the  past  have  failed  to  accomplish  any  permanently 
useful  results.  It  is  probable  that  convictions  would  be  difficult 
to  obtain  even  where  the  offense  was  flagrant  and  the  guilt  of  the 
defendants  clear."  M 

§  243.  The  Power  of  the  United  States  to  Compel  the  Election 

by  the  States  of  Representatives  to  Congress,  Senators 

and  Presidential  Electors.  ^ 

It  has  at  times  been  suggested  that  the  States  might,  if  they 

should  so  choose,  destroy  the  Federal  Government  by  a  refusal  to 

select    Presidential    Electors,    Representatives    to    Congress    and 

Senators.    In  the  case  of  Representatives,  should  the  States  refuse 

to  take  action,  their  election  could,  as  we  have  seen,  be  directly 

••U.  S.  Dist.  Atty.  Rom,  in  American  Political  Science  Review,  I,  41,  in 

an  article  entitled  'Negro  Suffrage:   The  Constitutional  Point  of  View." 


556  United  States  Constitutional  Law. 

undertaken  by  the  Federal  Government.  As  regards  Senators 
and  Presidential  Electors,  however,  the  Federal  Government 
could  not  itself  undertake  their  election,  and  it  is  difficult  to  sug- 
gest legal  means  by  which  state  action  could  be  compelled.  In 
Cohens  v.  Virginia,38  Barbour,  arguing  in  behalf  of  the  position 
which  had  been  taken  by  Virginia,  declared :  "  Whenever  the 
States  shall  be  determined  to  destroy  the  Federal  Government, 
they  will  not  find  it  necessary  to  act,  and  to  act  in  violation  of 
the  Constitution.  They  can  quietly  accomplish  the  purpose  by 
not  acting.  Upon  the  state  legislatures  it  depends  to  appoint  the 
Senators  and  Presidential  Electors,  or  to  provide  for  their  elec- 
tion. Let  them  merely  not  act  in  these  particulars,  the  executive 
department  and  part  of  the  legislature  ceases  to  exist,  and  the 
Federal  Government  thus  perishes  by  a  sin  of  omission  not  of 
commission."  To  this  position  Webster  alluded  in  his  speech  in 
reply  to  Calhoun,  and  endeavored  to  minimize  its  importance 
from  the  States'  Eights  standpoint.  "  I  hear  it  often  suggested," 
he  said,  u  that  the  States,  by  refusing  to  appoint  Senators  and 
Electors,  might  bring  this  government  to  an  end.  Perhaps  this 
is  true ;  but  the  same  may  be  said  of  the  state  governments  them- 
selves. Suppose  the  legislature  of  a  State,  having  the  power  to 
appoint  the  governor  and  the  judges,  should  omit  that  duty,  would 
not  the  state  government  remain  unorganized  ?  Xo  doubt,  all 
elective  governments  may  be  broken  up  by  a  general  abandonment 
on  the  part  of  those  entrusted  with  political  powers,  of  their  ap- 
propriate duties."  Moreover,  as  a  matter  of  fact,  as  Webster  went 
on  to  show,  in  a  certain  very  important  sense  the  federal  Consti- 
tution relies,  for  the  maintenance  of  the  government  which  it 
establishes,  upon  the  plighted  faith  not  of  the  States,  as  States, 
but  upon  the  several  oaths  of  its  individual  citizens,  in  that  all 
members  of  a  state  legislature  are  obliged,  as  a  condition  prece- 
dent to  their  taking  their  seats,  to  swear  to  support  the  federal 
Constitution,  and  from  the  obligation  of  this  oath  no  state  power 
can  discharge  them.  Thus,  says  Webster,  "  no  member  of  a  state 
legislature  can  refuse  to  proceed  at  the  proper  time  to  elect  Sena- 

39  6  YVh.  264 ;  5  L.  ed.  257. 


Elix  nox  of  MsMasgs  of  Coxgkess.  .".".7 

tors  to  Congress,  or  to  provide  for  the  choice  of  Electors  of  Presi- 
dent and  Vice-President,  any  more  than  the  members  of  this  body 
[Senate]  can  refuse,  when  the  appointed  day  arrives,  to  meet  the 
members  of  the  other  House,  to  count  the  votes  for  those  officers, 
and  to  ascertain  who  are  chosen.  In  both  cases,  the  duty  binds, 
and  with  equal  strength,  the  conscience  of  the  individual  member, 
and  it  is  imposed  on  all  by  an  oath  in  the  very  same  words.  Let 
it  then  never  be  said,  Sir,  that  it  is  a  matter  of  discretion  with 
the  States  whether  they  will  continue  the  government,  or  break 
it.  up  by  refusing  to  appoint  Senators  and  Electors.  They  have 
no  discretion  in  the  matter.  The  members  of  the  legislatures  can- 
not avoid  doing  either,  so  often  as  the  time  arrives,  without  a 
direct  violation  of  their  duty  and  their  oaths ;  such  a  violation  as 
would  break  up  any  other  government." 

The  correctness  of  the  reasoning  of  V\'ebster  may  be  granted, 
and  yet  the  fact  remains  that  however  great  a  moral  obligation 
there  may  be  upon  the  individual  members  of  the  several  state 
governments  to  take  such  action  as  is  necessary  to  equip  the  Fed- 
eral Government  with  the  officials  necessary  for  its  operation, 
there  exists  no  legal  means,  by  an  issue  of  mandamus  or  other- 
wise, to  compel  such  action  when  refused. 

§  244.  Election  of  Senators. 

The  Constitution  provides  that  Senators  in  the  federal  Congress 
shall  be  chosen  by  the  legislatures  of  the  several  States,  and  that 
"  the  times,  places,  and  manner  of  holding  elections  for  Senators 
and  Representatives  shall  be  prescribed  in  each  State  by  the  legis- 
lature thereof;  but  that  Congress  may  at  any  time  by  law  make 
or  alter  such  regulations,  except  as  to  the  places  of  choosing 
Senators." 

Xot  until  18G6  did  Congress  exercise  the  control  over  the  elec- 
tion of  'Senators  thus  given  it.  Prior  to  that  date  the  Senate  had 
recognized  the  validity  of  elections  l>:ised  on  majority  votes  in 
joint  conventions  of  the  two  houses  of  the  state  legislatures,  where 
a  concurrent  choice  of  the  two  houses  sitting  separately  was  not 
obtained.     It  was  held,  however,  in  the  case  of  James  Harlan, 


558  United  States  Constitutional  Law. 

1857,  that  in  such  joint  conventions  a  quorum  of  both  houses  must 
be  present. 

By  the  act  of  1866  the  entire  matter  was  federally  determined. 
The  text  of  the  law  is  given  below.40 

In  the  case  of  James  B.  Eustis,  the  Senate  held  that,  under  this 
law,  an  election  made  by  a  majority  vote  in  a  joint  convention  was 

40  Rev.  Stat.,  §§  14-19. 

"  §  14.  The  legislature  of  each  State  which  is  chosen  next  preceding  the 
expiration  of  the  time  for  which  any  Senator  was  elected  to  represent  such 
State  in  Congress  shall,  on  the  second  Tuesday  after  the  meeting  and  organiza- 
tion thereof,  proceed  to  elect  a  Senator  in  Congress. 

§  15.  Such  election  shall  be  conducted  in  the  following  manner:  Each 
house  shall  openly  by  viva-voce  vote  of  each  member  present,  name  one  person 
for  Senator  in  Congress  from  such  State,  and  the  name  of  the  person  so  voted 
for,  who  receives  a  majority  of  the  whole  number  of  votes  cast  in  each  house, 
shall  be  entered  on  the  journal  of  that  house  by  the  clerk  or  secretary 
thereof;  or  if  either  house  fails  to  give  such  majority  to  any  person  on  that 
day,  the  fact  shall  be  entered  on  the  journal.  At  twelve  o'clock  meridian 
of  the  day  following  that  on  which  proceedings  are  required  to  take  place 
as  aforesaid,  the  members  of  the  two  houses  shall  convene  in  joint  assembly, 
and  the  journal  of  each  house  shall  then  be  read,  and  if  the  same  person 
has  received  a  majority  of  all  the  votes  in  each  house,  he  shall  be  declared 
duly  elected  Senator.  But  if  the  same  person  has  not  received  a  majority 
of  the  votes  in  each  house,  or  if  either  house  has  failed  to  take  proceedings 
as  required  by  this  section,  the  joint  assembly  shall  then  proceed  to  choose, 
by  a  viva-voce  vote  of  each  member  present,  a  person  for  Senator,  and  the 
person  who  receives  a  majority  of  all  the  votes  of  the  joint  assembly,  a 
majority  of  all  the  members  elected  to  both  houses  being  present  and  voting, 
shall  be  declared  duly  elected.  If  no  person  receives  such  majority  on  the 
first  day,  the  joint  assembly  shall  meet  at  twelve  o'clock  meridian  of  each 
succeeding  day  during  the  session  of  the  legislature,  and  shall  take  at  least 
one  vote,  until  a  Senator  is  elected." 

§  16.  Whenever  on  the  meeting  of  the  legislature  of  any  State  a 
vacancy  exists  in  the  representation  of  such  State  in  the  Senate,  the  legis- 
lature shall  proceed,  on  the  second  Tuesday  after  meeting  and  organization, 
to  elect  a  person  to  fill  such  vacancy,  in  the  manner  prescribed  in  the  pre- 
ceding section  for  the  election  of  a  Senator  for  a  full  term. 

§  17.  Whenever  during  the  session  of  the  legislature  of  any  State  a 
vacancy  occurs  in  the  representation  of  such  State  in  the  Senate,  similar 
proceedings  to  fill  such  vacancy  shall  be  had  on  the  second  Tuesday  after  the 
legislature  has  organized  and  has  notice  of  such  vacancy. 

§  18.  It  shall  be  the  duty  of  the  executive  of  the  State  from  which  any 
6enator  has  been  chosen,  to  certify  his  election,  under  the  seal  of  the  State, 
to  the  President  of  the  Senate  of  the  United  States. 

§  19.  The  certificate  mentioned  in  the  preceding  section  shall  be  counter- 
signed by  the  secretary  of  state  of  the  State. 


Election  of  Members  of  Congress.  550 

valid,  even  though  there  was  not  present  a  quorum  of  one  of  the 
houses. 

When  there  is  a  dispute  as  to  which  of  two  contesting  state 
bodies  is  the  de  jure  legislature,  the  United  States  Senate,  while 
having  the  power  to  exercise  its  own  judgment  will  ordinarily 
recognize  that  body  which  is  accepted  as  de  jure  by  the  other 
state  authorities. 

§  245.  Popular  Election  of  Senators. 

The  constitutional  provision  that  Senators  shall  in  each  State 
be  elected  by  the  legislature  thereof  has,  in  a  number  of  instances, 
been  practically  evaded  by  state  laws  or  party  regulations  provid- 
ing either  that  the  people  shall  by  popular  vote  indicate  their 
choice  for  Senators,  such  indication  being  in  practice,  if  not 
legally,  binding  upon  the  members  of  the  state  legislature ;  or  that 
each  political  party  shall  in  a  primary  vote  indicate  its  choice, 
which  choice  in  effect  binds  the  party's  Representatives  in  the 
state  legislature.*1 

§  246.  Vacancies  in  the  Senate. 

It  is  provided  by  the  Constitution  that  if  vacancies  in  the  Sen- 
ate "  happen  by  resignation  or  otherwise,  during  the  recess  of  the 
legislature  of  any  State,  the  executive  thereof  may  make  tempo- 
rary appointments  until  the  next  meeting  of  the  legislature,  which 
shall  then  fill  such  vacancies." 

There  has  been  considerable  difference  of  opinion  as  to  the 
proper  construction  to  be  given  to  the  term  "  happen "  as  em- 
ployed in  the  foregoing  constitutional  clause.  By  some  it  has 
been  argued  that  a  vacancy  "  happens "  whenever,  .for  any 
reason  whatever,  there  is  a  vacancy  in  the  representation  of  a 
State  in  the  Senate.  By  others,  it  is  asserted,  that  where  a  state 
legislature  has  had  the  opportunity  to  elect  a  Senator  and  has 
failed  to  do  so,  it  cannot  be  said  that  a  vacancy  has  "  happened  " 
but  that  it  has  been  present  and  brought  about  by  the  non-action 
of  the  state  electoral  body,  and  that  that  body  has  thus  impliedly 

«i  See  Haynes,  The  Election  of  Senators.  Also  Sen.  Kep.  530,  54th  Cong., 
1st  Sess. ;   and  Sen.  Doc.  400,  57th  Cong.,  1st  Sess. 


560  United  States  Constitutional  Law. 

shown  that  it  does  not  desire  the  vacancy  to  he  filled.  This  was 
the  position  taken  by  the  Senate  in  1900  in  the  case  of  Senator 
Quay  from  Pennsylvania.  The  Committee  on  Privileges  and 
Elections,  in  its  report  to  the  Senate  recommending  this  action, 
after  stating  the  facts,  said:  "It  will  thus  be  seen  that  the  va- 
cancy, which  the  Governor  of  Pennsylvania  has  here  attempted 
to  provide  for  by  a  temporary  appointment,  was  one  which  was 
foreseen,  one  which  was  caused  by  the  expiration  of  a  prior  term, 
one  which  occurred  while  the  legislature  of  Pennsylvania  was  in 
session,  and  one  which  that  legislature  had  an  opportunity  of  fill- 
ing before  it  occurred,  in  the  interim  between  the  date  of  the  oc- 
currence and  the  appointment  of  the  Governor.  Under  these 
facts  we  think  that  the  appointment  is  invalid.  .  .  .  After  a 
vacancy  in  the  office  of  United  States  Senator  occurs  or  comes  to 
pass,  if  the  next  legislature  does  not  fill  it,  it  continues  to  exist. 
It  is  the  same  vacancy,  not  a  new  one.  Xow  the  state  executive 
is  given  power  to  make  temporary  appointments  in  case  of  a 
vacancy  not  as  long  as  it  continues  or  exists,  but  only  until  the 
next  meeting  of  the  legislature,  which  is  then  required  to  fill  the 
vacancy.  This  clearly  means  that  the  paramount  intent  to  have 
the  legislature  choose  the  Senators  is  to  prevail,  and  that,  when- 
ever the  legislature  has  had  the  opportunity  to  fill  the  vacancy, 
either  before  or  after  it  occurs,  the  executive  has  no  power  to 
appoint."  ^ 

The  senatorial  practice  has  not  been  uniform  in  respect  to 
executive  appointments  to  fill  vacancies,  but  the  action  in  the 
Quay  case  has  probably  determined  the  doctrine  for  the  future. 

§  247.  Vacancies  in  the  House  of  Representatives. 

When  vacancies  happen  in  the  representation  from  any  State, 
it  is  provided  that  the  executive  authority  thereof  shall  issue 
writs  of  election  to  fill  such  vacancies. 

Vacancies  are  occasioned  by  death,  by  resignation,  or  by  ac- 
ceptance of  a  disqualifying  office.43 

«  Sen.  Rpt.  153,  56th  Cong.,  1st  Scss. 
43  Van  Xess  Case,  CI.  &  H.  122. 


CHAPTER    XXXIX. 

THE    PROCESS    OF    LEGISLATION    AS    CONSTITUTIONALLY 
DETERMINED. 

§  248.  Constitutional  Provisions. 

To  a  certain  extent  the  manner  of  conducting  business  in  Con- 
gress, and  the  process  of  legislation  are  determined  by  the  Consti- 
tution. It  is  provided  that  the  Vice-President  shall  be  the 
president  of  the  Senate,  but  shall  have  no  vote  except  in  case  of 
a  tie.  The  Senate,  however,  is  empowered  to  choose  its  other 
officers,  including  the  president  pro  tempore  to  preside  in  the 
absence  of  the  Vice-President  or  when  he  is  exercising  the  office 
of  President  of  the  United  States.  The  House  is  empowered 
to  choose  all  of  the  officer's,  including  its  presiding  officer,  the 
Speaker. 

It  is  required  that  Congress  shall  assemble  at  least  once  in 
every  year,  and  that  such  meeting  shall  be  on  the  first  Monday  in 
December,  unless  by  law  a  different  day  is  appointed. 

A  majority  of  each  House  is  fixed  as  a  quorum  to  do  business, 
but  a  smaller  number  is  competent  to  adjourn  from  day  to  day, 
and  to  compel  the  attendance  of  absent  members  in  such  manner 
and  under  such  penalties  as  each  House  may  provide. 

Laeh  House  is  authorized  to  determine  the  rules  of  its  pro- 
cedure, to  punish  its  members  for  disorderly  behavior,  and,  as  we 
have  seen,  with  the  concurrence  of  two-thirds  to  expel  a  member. 

Xeither  House  may,  without  the  consent  of  the  other  House, 
during  a  session  of  Congress  adjourn  for  more  than  three  days, 
nor  to  any  other  place  than  that  in  which  the  Houses  are  sitting. 

BacB  Iiou&e  is  required  to  keep  a  journal  of  its  proceedings, 
and  from  time  to  time  to  publish  the  same,  excepting  such  parts 
as  may  in  their  judgment  require  secrecy;  and  it  is  ordered  that, 
at  the  desire  of  one-fifth  of  those  present,  the  yeas  aud  nays  of 
members  of  either  House  on  any  question  shall  be  entered  on  this 

journal. 

[561] 
36 


562  .    United  States  Constitutional  Law. 

The  foregoing  constitutional  provisions  impose  duties  upon  and 
grant  powers  to  the  two  Houses  of  Congress,  the  fulfilment  and 
exercise  of  which  are  placed  within  the  discretion  of  the  Houses 
themselves.  Very  few  questions  arising  under  these  clauses  have, . 
therefore,  been,  or  could  have  been,  brought  before  the  courts. 
One  important  point  has,  however,  been  raised  and  deserves  at- 
tention.   This  is  discussed  in  the  next  section. 

§  249.  Conclusiveness  of  the  Records  of  Congressional  Pro- 
ceedings. 

In  a  few  instances  the  validity  of  laws  purported  to  have  been 
enacted  by  Congress  has  been  questioned  upon  the  ground  that 
they  have  not,  in  fact,  been  enacted  by  that  body  in  accordance 
with  the  requirements  of  the  Constitution.  This  has  necessitated 
the  examination  of  the  records  of  the  proceedings  of  Congress  and 
a  determination  of  the  evidential  value  to  be  given  to  these  pro- 
ceedings. 

In  Field  v.  Clark1  it  was  contended  by  the  appellants  that  an 
enrolled  act  in  the  custody  of  the  Secretary  of  State,  and  appear- 
ing upon  its  face  to  be  a  law  enacted  by  Congress,  was  a  nullity, 
because,  as  was  shown  by  the  records  of  proceedings  in  Congress, 
and  the  reports  of  committees,  including  that  of  the  committee 
on  conference,  a  section  of  the  bill  as  finally  passed  was  not  in  the 
bill  authenticated  by  the  signatures  of  the  presiding  officers  of  the 
two  Houses  and  signed  by  the  President.  The  court,  however, 
declared  that  the  attestation  of  the  Speaker  of  the  House  and  of 
the  President  of  the  .Senate,  the  signature  of  the  President  of  the 
United  States,  and  the  deposit  of  a  measure  as  a  law  in  the  public 
archives  are  to  be  taken  as  unimpeachable  evidence  that  the  consti- 
tutional requirements  for  legislation  have  been  satisfied,  and  that 
the  measure  as  thus  certified  to  has  received  the  approval  of  the 
legislative  branch  of  the  government.  The  opinion  concludes : 
"  We  are  of  the  opinion,  for  the  reasons  stated,  that  it  is  not 
competent  for  the  appellants  to  show,  from  the  journals  of  either 
House,  from  the  reports  of  committees,  or  from  other  documents, 

i  143  U.  S.  G49;   12  Sup.  Ct.  Rep.  495;  36  L.  ed.  294. 


Legislation  as  Constitutionally  Determined.       563 

printed  by  authority  of  Congress,  that  the  enrolled  bill,  designated 
'  H.  It.  9416,'  as  finally  passed,  contained  a  section  that  does  not 
appear  in  the  enrolled  Act  in  the  custody  of  the  State  Depart- 
ment." 

In  United  States  v.  Ballin2  the  evidential  value  of  records  of 
congressional  proceedings  was  again  considered.  The  points  in- 
volved and  'their  decision  sufficiently  appear  from  the  following 
quotation  from  the  opinion :  "  Two  questions  only  are  presented : 
first,  was  the  Act  of  May  9,  1890,  legally  passed  and,  second, 
what  is  the  meaning?  The  first  is  the  important  question.  The 
enrolled  bill  is  found  in  the  proper  office,  that  of  the  Secretary  of 
State,  authenticated  and  approved  in  the  customary  and  legal 
form.  There  is  nothing  on  the  face  of  it  to  suggest  any  invalidity. 
Is  there  anything  in  the  facts  disclosed  by  the  journal  of  the 
House,  as  found  by  the  general  appraisers,  which  vitiates  it  ?  We 
are  not  unmindful  of  the  general  observations  found  in  Gardner 
v.  Barney  (6  Wall.  499;  18  L.  ed.  890)  'that  whenever  a  ques- 
tion arises  in  a  court  of  law  of  the  existence  of  a  statute,  or  of  the 
time  when  a  statute  took  effect,  or  of  the  precise  terms  of  a  stat- 
ute, the  judges  who  are  called  upon  to  decide  it  have  a  right  to 
resort  to  any  source  of  information  which  in  its  nature  is  capable 
of  conveying  to  the  judicial  mind  a  clear  and  satisfactory  answer 
to  such  question ;  always  seeking  first  for  that  which  in  its  nature 
is  most  appropriate,  unless  the  positive  law  has  enacted  a  different 
rule.'  And  we  have  at  the  present  term,  in  the  case  of  Field  v. 
Clark,  had  occasion  to  consider  the  subject  of  an  appeal  to  the 
journal  in  a  disputed  matter  of  this  nature.  It  is  unnecessary  to 
add  anything  here  to  that  general  discussion.  The  Constitution 
(Article  I,  'Section  5)  provides  that  'each  House  shall  keep  a 
journal  of  its  proceedings;'  and  that  'the  yeas  and  nays  of  the 
members  of  either  House  on  any  question  shall  at  the  desire  of  one- 
fifth  of  those  present,  be  entered  on  the  journal.'  Assuming  that 
by  reason  of  this  latter  clause  reference  may  be  had  to  the  journal, 
to  see  whether  the  yea.-;  and  nays  were  ordered,  and  if  so  what. 
was   the  vote  disclosed   thereby;   and   assuming,  though  without 

2  144  U.  S.  1;   12  Sup.  Ct  Rep.  507:   36  L.  ed.  321. 


564  Qjebbed  States  Constitutional  Law. 

deciding,  that  the  facts  which  the  Constitution  requires  to  be 
placed  on  the  journal  may  be  appealed  to  on  the  question  whether 
a  law  has  been  legally  enacted,  yet  if  reference  may  be  had  to 
such  journal,  it  must  be  assumed  to  speak  the  truth.  It  cannot 
be  that  we  can  refer  to  the  journal  for  the  purpose  of  impeach- 
ing a  statute  properly  authenticated  and  approved  and  then  sup- 
plement and  strengthen  that  impeachment  by  parol  evidence  that 
the  facts  stated  on  the  journal  are  not  true,  or  that  other  facts 
existed  which,  if  stated  on  the  journal,  would  give  force  to  the 
impeachment."  3 

§  250.  Constitutional  Force  of  Rules  of  the  House  and  Senate. 
In  United  States  v.  Ballin  was  also  raised  an  interesting  ques- 
tion as  to  the  constitutional  validity  of  a  certain  rule  of  procedure 
adopted  by  the  House  of  Representatives.  As  to  this  the  court,  in 
its  opinion,  say :  "The  Constitution  .  .  .  provides,  that .  *  each 
House  may  determine  the  rules  of  its  proceedings.'  It  appears 
that,  in  pursuance  of  this  authority,  the  House  had.  prior  to  that 
day,  passed  this  as  one  of  its  rules :  Rule  XV.  '  On  the  demand 
of  any  member,  or  at  the  suggestion  of  the  Speaker,  the  names 
of  members  sufficient  to  make  a  quorum  in  the  hall  of  the  House 
who  do  not  vote  shall  be  noted  by  the  clerk  and  recorded  in  the 
journal,  and  reported  to  the  Speaker  with  the  names  of  the  per- 
sons voting,  and  be  counted  and  announced  in  determi ning  the 
presence  of  a  quorum  to  do  business.'  (House  Journal.  230,  Feb. 
14,  1890.)  The  action  taken  was  in  direct  compliance  with  this 
rule.  The  question,  therefore,  is  as  to  the  validity  of  this  rule, 
and  not  what  methods  the  Speaker  may  of  his  own  motion  resort  to 

3  With  reference  to  laws  of  the  States,  the  Supreme  Court  in  Duncan  v. 
McCall  (139  U.  S.  449;  11  Sup.  Ct.  Rep.  573;  35  L.  ed.  219)  say:  "It  is 
unnecessary  to  enter  upon  an  examination  of  the  rulings  in  the  different 
States  upon  the  question  whether  a  statute  duly  authenticated,  approved  and 
enrolled  can  be  impeached  by  resort  to  the  journals  of  the  legislature,  or 
other  evidence,  for  the  purpose  of  establishing  that  it  was  not  passed  in  the 
manner  prescribed  by  the  state  Constitution.  The  decisions  are  numerous  and 
the  results  reached  fail  of  uniformity.  The  courts  of  the  United  States 
necessarily  adopt  the  adjudication  of  the  state  courts  on  the  subject " 
[citing  cases]. 


Legislation  as  ('on.stiti-tioxaley  Determined. 

for  determining  tLe  presence  of  a  quorum,  nor  what  matters  the 
Speaker  or  clerk  of  their  own  volition  place  upon  the  journaL 
Neither  do  the  advantages  or  disadvantages,  the  wisdom  or  folly, 
of  such  a  rule  present  any  matters  for  judicial  consideration.  With, 
the  courts  the  question  is  only  one  of  power.  The  Constitution 
empowers  each  House  to  determine  its  rules  of  proceedings.  It 
may  not  by  its  rules  ignore  constitutional  restraints  or  violate 
fundamental  rights,  and  there  should  be  a  reasonable  relation  be- 
tween the  mode  or  method  of  proceeding  established  by  the  ride 
and  the  result  which  is  sought  to  be  attained.  But  within  these 
limitations  all  matters  of  method  are  open  to  the  determination 
of  the  House,  and  it  is  no  impeachment  of  the  rule  to  say  that 
some  other  method  would  be  better,  more  accurate,  or  even  more 
just.  It  is  no  objection  to*the  validity  of  a  rule  that  a  different 
one  has  been  prescribed  and  in  force  for  a  length  of  time.  The 
power  to  make  rules  is  not  one  which  once  exercised  is  exhausted. 
It  is  a  continuous  power,  always  subject  to  be  exercised  by  the 
House,  and  within  the  limitations  suggested,  absolute  and  beyond 
the  challenge  of  any  other  body  or  tribunal.  The  Constitution 
provides  that  '  a  majority  of  each  [House]  shall  constitute  a 
quorum  to  do  business.'  In  other  words,  when  a  majority  are 
present,  the  House  is  in  a  position  to  do  business.  Its  capacity 
to  transact  business  is  then  established,  created  by  the  mere  pres- 
ence of  a  majority,  and  when  that  majority  are  present  Vac  power 
of  the  House  arises.  But  how  shall  the  presence  of  a  majority  be 
determined  '.  The  Constitution  has  prescribed  no  method  of  mak- 
ing this  determination,  and  it  is  therefore  within  the  competence 
of  the  House  to  prescribe  any  method  which  shall  be  reasonably 
certain  to  ascertain  the  fact.  It  may  prescribe  answer  to  roll- 
call  as  the  only  method  of  determination;  or  require  the  passage 
of  members  between  tellers,  and  their  count  as  the  sole  test;  or 
the  count  of  the  Speaker  and  the  clerk,  and  an  announcement  from 
the  desk  of  the  names  of  those  who  are  present,  Any  one  of  these 
ni«  thods.  it  must  be  conceded,  is  reasonably  certain  of  ascertain- 
ing the  fact,  and  as  there  is  no  constitutional  method  prescribed, 
and  no  constitutional  inhibition  of  any  of  those,  and  no  violation 


566  United  States  Constitutional  Law. 

of  fundamental  rights  in  any,  it  follows  that  the  House  may  adopt 
either  or  all,  or  it  may  provide  for  a  combination  of  any  two  of 
the  methods.  That  was  done  by  the  rule  in  question ;  and  all  that 
rule  attempts  to  do  is  to  prescribe  a  method  for  ascertaining  the 
presence  of  a  majority,  and  thus  establishing  the  fact  that  the 
House  is  in  a  condition  to  transact  business.  As  it  appears  from 
the  journal,  at  the  time  this  bill  passed  the  House  there  was 
present  a  majority,  a  quorum,  and  the  House  was  authorized  to 
transact  any  and  all  business.  It  was  in  a  condition  to  act  on  the 
hill  if  it  desired.  The  other  branch  of  the  question  is,  whether, 
a  quorum  being  present,  the  bill  received  a  sufficient  number  of 
votes ;  and  here  the  general  rule  of  all  parliamentary  bodies  is 
that,  when  a  quorum  is  present,  the  act  of  a  majority  of  the 
quorum  is  the  act  of  the  body." 

§  251.  Revenue  Measures. 

The  Constitution  provides  that  "  all  bills  for  raising  revenue 
shall  originate  in  the  House  of  Representatives ;  but  the  Senate 
may  propose  or  concur  with  amendments  as  on  other  bills." 

This  provision  has  given  rise  to  frequent  controversies  between 
the  two  Houses  of  Congress,  but  has  but  seldom  been  passed  upon 
by  the  courts.  No  formal  definition  of  a  revenue  measure  has 
been  given  by  the  Supreme  Court,  but  in  Twin  City  Xational 
Bank  v.  Nebeker4  the  court,  in  effect,  held  that  a  bill,  the  primary 
purpose  of  which  is  not  the  raising  of  revenue,  is  not  a  measure 
that  must  originate  in  the  House,  even  though,  incidentally,  a 
revenue  will  be  derived  by  the  United  States  from  its  execution. 

The  House  has,  upon  a  number  of  occasions,5  refused  to  agree 
to  or  consider  senatorial  amendments  to  revenue  measures  upon 
the  ground  that  the  amendments  have  enlarged  the  scope  or 
changed  the  character  of  the  measure  as  originated  in  the  House. 
The  views  held  by  the  House  and  the  Senate,  respectively,  regard- 
ing what,  in  specific  instances,  should  properly  be  termed  revenue 
measures  and  what  proper  amendments  thereto,  do  not  need  to 

4  167  U.  S.   196;   17  Sup.  Ct.  Rep.   766;   42  L.  ed.   134. 

6  See  Hinds,  Precedents  of  the  House  of  Representatives,  Chapter  XLVII. 


Legislation  as  Constitutionally  Determined.       567 

be  stated  in  this  treatise.  They  are  set  out  at  length  in  Mr. 
Hinds'  treatise.6  Especially  the  House  has  denied,  and  the  Senate 
has  insisted  upon,  its  right  to  originate  measures  which  repeal  a 
law  or  portion  of  a  law  imposing  taxes,  duties,  imposts  or  excises. 

§  252.  Appropriation  Acts. 

It  would  seem  that  the  Senate  has  full  power  to  originate  meas- 
ures appropriating  money  from  the  federal  treasury.  This  right 
has  at  times  been  denied  by  certain  members  of  the  House,7  but 
the  House  has  not  itself  formally  adopted  this  negative  view. 

§  253.  Presidential  Participation  in  Law  Making. 

The  duties  and  powers  of  the  President  with  reference  to  the 
enactment  of  laws  are  stated  in  Clause  2  of  Section  VII  of  Article 
I  of  the  Constitution.  This  clause  reads:  Every  bill  which 
shall  have  passed  the  House  of  Representatives  and  the  Senate, 
shall,  before  it  become  a  law,  be  presented  to  the  President  of  the 
United  States;  if  he  approve  he  shall  sign  it,  but  if  not  he  shall 
return  it,  with  his  objections  to  that  House  in  which  it  shall  have 
originated,  who  shall  enter  the  objections  at  large  on  their  journal, 
and  proceed  to  reconsider  it.  If  after  such  reconsideration  two- 
thirds  of  that  House  shall  agree  to  pass  the  bill,  it  shall  be  sent, 
together  with  the  objections,  to  the  other  House,  by  which  it  shall 
likewise  be  reconsidered,  and  if  approved  by  two-thirds  of  that 
House,  it  shall  become  a  law.  But  in  all  such  cases  the  votes  of 
both  Houses  shall  be  determined  by  yeas  and  nays,  and  the  names 
of  the  persons  voting  for  and  against  the  bill  shall  be  entered  on 
the  journal  of  each  House  respectively.  If  any  bill  shall  not  be 
returned  by  the  President  within  ten  days  (Sundays  excepted) 
after  it  shall  have  been  presented  to  him,  the  same  shall  be  a  law, 
in  like  manner  as  if  he  had  signed  it,  unless  the  Congress  by  their 
adjournment  prevent  its  return,  in  which  case  it  shall  not  be  a 
law." 

6  Precedents  of  the  House  of  Representatives. 

7  See  especially  the  views  of  the  minority  in  House  Report  No.   147,  46th 
Cong.,  3d  Sess.;   also  Hinds,  §   1500. 


568  United  States  Gomni l u lmbjbl  Law. 

In  an  earlier  chapter  it  has  been  pointed  out  that  the  foregoing 
provisions  have  no  application  to  amendments  to  the  Constitution 
proposed  by  Congress  to  the  States  for  their  approval  or  disap- 
proval 

§  254.  Resolutions. 

In  the  Fifty-fourth  Congress,  2d  Session,  the  Senate  Committee 
on  the  Judiciary  was  requested  to  report  whether  a  certain  resolu- 
tion mentioned  in  a  law  should  be  in  the  form  of  a  "  joint  resolu- 
tion," and  whether  it  was  necessary  that  "  concurrent  resolutions  " 
should  be  submitted  to  the  President  of  the  United  States. 

In  its  report  the  committee,  while  admitting  that  Clause  o,  Sec- 
tion YII  of  Article  I  of  the  Constitution,  literally  applied,  would 
make  it  necessary  that  every  joint  or  concurrent  resolution  of 
Congress,  whatever  its  substance  or  intent,  would  have  to  be  sub- 
mitted to  the  President  for  his  approval,  go  on  to  say  that  the 
Constitution  must  look  beyond  the  mere  form  of  a  resolution,  to 
its  subject-matter,  and  that  the  words  "  to  which  the  concurrence 
of  the  Senate  and  House  of  Representatives  may  be  necessary  " 
are  to  be  construed  to  relate  only  to  matters  of  legislation  to  which. 
the  concurrent  action  of  both  Houses  is  by  the  Constitution  made 
absolutely  necessary ;  in  short,  only  to  legislative  measures.  Thus, 
in  general,  joint  resolutions  need  to  be  sent  to  the  President; 
concurrent  resolutions  do  not.  Of  these  latter  the  committee  say: 
"  Por  over  a  hundred  years  .  .  .  they  have  never  been  so  pre- 
sented. They  have  uniformly  been  regarded  by  all  the  Depart- 
ments of  the  Government  as  matters  peculiarly  within  the  prov- 
ince of  Congress  alone.  They  have  never  embraced  legislative 
decisions  proper,  and  hence  have  never  been  deemed  to  require 
executive  approval.  This  practical  construction  of  the  Constitu- 
tion, thus  acquiesced  in  for  a  century,  must  be  deemed  the  true 
construction  with  which  no  court  will  interfere." 

§  255.  Parts  of  Bills  May  not  Be  Vetoed. 

In  those  States  whose  Constitutions  have  not  expressly  given 
the  executive  the  power   to   approve  parts,   and   disapprove  the 


Legislation  as  Constitutionally  Determined.        569 

remainder  of  bills,  it  has  been  uniformly  held  that  he  has  not 
the  power.  When,  however,  he  has  attempted  to  do  so,  the  de- 
cisions have  been  in  conflict  as  to  whether  such  partial  approval 
is  no  approval  at  all  and  amounts  to  a  veto,  or  whether  the  entire 
measure  is  to  be  treated  as  approved,  the  disapproval  of  the  parts 
being  considered  a  nullity.s 

§  256.  Riders. 

The  federal  Executive  has  never  attempted  the  exercise  of,  or 
claimed,  the  right  to  veto  parts  of  measures  submitted  to  him  by 
Congress,  and  to  approve  the  remainder.  Because  thus  bound 
to  accept  or  reject  a  bill  as  a  whole,  Congress  has  at  times  at- 
tempted to  force  the  hand  of  the  President  by  incorporating  into 
a  measure  which  it  is  known  he  will  feel  almost  obligated  to  sign, 
provisions  which  it  is  believed  he  would  disapprove  if  submitted 
to  him  as  independent  propositions.  At  times,  however,  these  so- 
called  "  riders  "  have  led  to  the  veto  of  the  entire  bill.  President 
Hayes  returned  without  his  approval  several  appropriation  bills 
which  contained  legislation  which  was  not  agreeable  to  him. 
President  Johnson  returned  the  act  of  March  2,  1867  (Army 
Appropriation  Bill),  with  his  signature,  but  in  a  message  of  pro- 
test said :  u  These  provisions  are  contained  in  the  second  section, 
which  in  certain  cases  virtually  deprives  the  President  of  his 
constitutional  functions  as  commander-in-chief  of  the  army,  and 
in  the  sixth  motion  which  denies  to  ten  States  of  the  Union  their 
constitutional  right  to  protect  themselves  in  any  emergency,  by 
means  of  their  own  militia.  These  provisions  are  out  of  place 
in  an  appropriation  act.  I  am  compelled  to  defeat  these  necessary 
appropriations  if  I  withhold  my  signature  from  the  act" 

§  257.  May  Bills  Be  Signed  by  the  President  after  the  Adjourn- 
ment of  Congress? 
As  appears  from  the  constitutional  provision  which  has  been 
quoted,  a  measure,  if  not  returned  to  Congress  within  ten  days, 

-  In  Art.  by  .Jas.  I).  Barnett.  "  The  Executive  Control  of  the  LesrMature.'" 
4m.   Lair  Rev..  XLT,   384. 


570  United  States  Constitutional  Law. 

Sundays  excepted,  becomes  a  law  without  the  President's  signa- 
ture. If,  however,  Congress  adjourns  before  the  expiration  of  the 
ten  days,  the  measure  does  not  become  a  law  and  this  is  known 
as  a  pocket  veto.  The  question  has,  however,  been  several  times 
raised  whether  the  President  may  not,  if  he  desires  the  bill  to 
become  a  law,  sign  after  the  adjournment  of  Congress. 

In  1824  President  Monroe  by  inadvertence  failed  to  sign  a 
bill  before  the  adjournment  of  Congress  and  the  question  was 
discussed  by  his  Cabinet  as  to  his  right  to  sign,  notwithstanding 
the  adjournment.  Some  difference  of  opinion  being  manifested, 
the  President  decided  not  to  sign. 

In  1803  President  Lincoln  signed  a  bill  eight  days  after  Con- 
gress had  adjourned.  At  the  next  session  of  Congress  the  Judi- 
ciary Committee  of  the  House,  having  been  instructed  to  con- 
sider the  constitutionality  of  this,  unanimously  reported  that  the 
bill  was  not  a  law.  ISTo  action  was  taken  by  the  House  upon  this 
report,  but  later  substantially  the  same  measure  was  re-enacted 
by  Congress  and  signed  by  the  President.  The  committee,  in  its 
report  referred  to,  said :  "  The  ten  days'  limitation  ...  re- 
fers to  the  time  during  which  Congress  remains  in  session,  and 
has  no  application  after  adjournment.  Hence  if  the  Executive 
can  hold  a  bill  ten  days  after  adjournment  and  then  approve  it, 
he  can  as  well  hold  it  ten  months  before  approval.  This  would 
render  the  laws  of  the  country  uncertain  and  could  not  have  been 
intended  by  the  framers  of  the  Constitution.  The  spirit  of  the 
Constitution  evidently  requires  the  performance  of  every  act  nec- 
essary to  the  enactment  and  approval  of  laws  to  be  perfect  before 
the  adjournment  of  Congress."9 

9  In  United  States  v.  Weil  ( 29  Ct.  of  CI.  523 )  the  Court  of  Claims  held  that 
the  Supreme  Court  had  impliedly  upheld  the  earlier  act,  signed  after  ad- 
journment, by  passing  upon  claims  arising  under  it.  However,  it  is  to  be 
observed  that  the  act  was  valid  upon  its  face,  and  the  point  as  to  the  date 
of  its  signature  was  not  raised,  and  the  court  was  not  obliged  to  take 
judicial  cognizance  of  it. 

Professor  Barnett  in  an  article  in  the  Am.  Law  Rev.,  XLI,  230,  entitled 
"  The  Executive  Control  of  the  Legislature,"  and  Mr.  Eenick  in  an  article 
in  the  same  journal,  XXXII,  208,  entitled  "  The  Power  of  the  President  to 
Sign  Bills  after  the  Adjournment  of  Congress,"  give  a  full  discussion  of  this 


Legislation  as  Constitutionally  Determined.     .  571 

§  258.  Signing  of  Bills  During  Recess  of  Congress. 

In  the  Weil  case  the  court  argued  that  the  President  might 
sign  during  a  recess  of  Congress  even  if  he  might  not  sign  after 
its  adjournment,  and  this  proposition  was  upheld  by  the  Supreme 
Court  in  La  Abra  Silver  Mining  Co.  v.  United  States.10 

subject.  They  show  that  the  decisions  of  the  state  courts  with  reference  to 
the  signing  of  state  bills  by  the  governor  after  legislative  adjournment  are 
in  conilict,  with  the  balance  of  authority,  however,  in  support  of  the  practice. 
10  175  U.  S.  423;  20  Sup.  Ct.  Rep.  168;  44  L.  ed.  223.  "The  ground  of 
this  contention  is  that  having  met  in  regular  session  at  the  time  appointed 
by  law,  the  first  Monday  of  December,  1892,  and  having  on  the  22d  of  that 
month  (two  days  after  the  presentation  of  the  bill  to  the  President)  by 
the  joint  action  of  the  two  Houses  taken  a  recess  to  a  named  day,  January  4, 
1893,  Congress  was  not  actually  sitting  when  the  President,  on  the  28th 
day  of  December,  1892,  by  signing  it,  formally  approved  the  act  in  question. 
The  proposition,  plainly  stated,  is  that  a  bill  passed  by  Congress  and  duly 
presented  to  the  President  does  not  become  a  law  if  his  approval  be  given 
on  a  day  when  Congress  is  in  recess.  This  implies  that  the  constitutional 
power  of  the  President  to  approve  a  bill  so  as  to  make  it  a  law  is  absolutely 
suspended  while  Congress  is  in  recess  for  a  fixed  time.  It  would  follow  from 
this  that  if  both  Houses  of  Congress  by  their  joint  or  separate  action  were 
in  recess  from  some  Friday  until  the  succeeding  Monday,  the  President  could 
not  exercise  that  power  on  the  intervening  Saturday.  Indeed,  according  to 
the  argument  of  counsel  the  President  could  not  effectively  approve  a  bill 
on  any  day  when  one  of  the  Houses,  by  its  own  separate  action,  was  legally 
in  recess  for  that  day  in  order  that  necessary  repairs  be  made  in  the  room 
in  which  its  sessions  were  being  held.  Yet  many  public  acts  and  joint  resolu- 
tions of  great  importance,  together  with  many  private  acts,  have  been  treated 
as  valid  and  enforceable,  which  were  approved  by  the  President  during  the 
recesses  of  Congress  covering  the  Christmas  holidays.  In  the  margin  will 
be  found  a  reference  to  some  of  the  more  recent  of  those  statutes.  Do  the 
words  of  the  Constitution,  reasonably  interpreted,  sustain  the  views  advanced 
for  appellant?  ...  It  is  said  that  the  approval  by  the  President  of  a 
bill  passed  by  Congress  is  not  strictly  an  executive  function,  but  is  legis- 
lative in  its  nature;  and  this  view,  it  is  argued,  conclusively  shows  that  his 
approval  can  legally  occur  only  on  a  day  when  both  Houses  are  actually 
sitting  in  the  performance  of  legislative  functions.  Undoubtedly  the  Presi- 
dent when  approving  bills  passed  by  Congress  may  be  said  to  participate 
in  the  enactment  of  laws  which  the  Constitution  requires  him  to  execute. 
But  that  consideration  does  not  determine  the  question  before  us.  As  the 
Constitution,  while  authorizing  the  President  to  perform  certain  functions  of 
a  limited  number  that  are  legislative  in  their  general  nature,  does  not  re- 
strict the  exercise  of  those  functions  to  the  particular  days  on  which  the 
two  Houses  of  Congress  are  actually  sitting  in  the  transaction  of  public 
busings,    the    court   cannot    impose   such    a    restriction    upon    the   Executive. 


572  United  States  Constitutional  Law. 

It  is  made  his  duty  by  the  Constitution  to  examine  and  act  upon  every 
bill  passed  by  Congress.  The  time  within  which  he  must  approve  or  dis- 
approve a  bill  is  prescribed.  If  he  approve  a  bill,  it  is  made  his  duty  to 
sign  it.  The  Constitution  is  silent  as  to  the  time  of  his  signing,  except 
that  his  approval  of  a  bill  duly  presented  to  him  —  if  the  bill  is  to  become  a 
law  merely  by  virtue  of  such  approval  —  must  be  manifested  by  his  signature 
within  ten  days,  Sundays  excepted,  after  the  bill  has  been  presented  to  him. 
It  necessarily  results  that  a  bill  when  so  signed  becomes  from  that  moment 
a  law.  But  in  order  that  his  refusal  or  failure  to  act  may  not  defeat 
the  will  of  the  people,  as  expressed  by  Congress,  if  a  bill  be  not  approved 
and  be  not  returned  to  the  House  in  which  it  originated  within  that  time, 
it  becomes  a  law  in  like  manner  as  if  it  had  been  signed  by  him.  We 
perceive  nothing  in  these  constitutional  provisions  making  the  approval  of 
a  bill  by  the  President  a  nullity  if  such  approval  occurs  while  the  two 
Houses  of  Congress  are  in  recess  for  a  named  time.  After  the  bill  has  been 
presented  to  the  President,  no  further  action  is  required  by  Congress  in 
respect  of  that  bill,  unless  it  be  disapproved  by  him  and  within  the  time 
prescribed  by  the  Constitution  be  returned  for  reconsideration.  It  has  prop- 
erly been  the  practice  of  the  President  to  inform  Congress  by  message  of 
his  approval  of  bills,  so  that  the  fact  may  be  recorded.  But  the  essential 
thing  to  be  done  in  order  that  a  bill  may  become  a  law  by  the  approval 
of  the  President  is  that  it  be  signed  within  the  prescribed  time  after  being 
presented  to  him.  That  being  done,  and  as  soon  as  done,  whether  Congress 
is  informed  or  not  by  the  message  from  the  President  of  the  fact  of  his 
approval  of  it,  the  bill  becomes  a  law,  and  is  delivered  to  the  Secretary  of 
State  as  required  by  law.  Much  of  the  argument  of  counsel  seems  to  rest 
upon  the  provision  in  relation  to  the  final  adjournment  of  Congress  for 
the  session  whereby  the  President  is  prevented  from  returning,  within  the 
period  prescribed  by  the  Constitution,  a  bill  that  he  disapproves  and  is 
unwilling  to  sign.  But  the  Constitution  places  the  approval  and  disapproval 
of  bills,  as  to  their  becoming  laws,  upon  a  different  basis.  If  the  President 
does  not  approve  a  bill,  he  is  required  within  a  named  time  to  send 
it  back  for  consideration.  But  if  by  its  action,  after  the  presentation  of 
a  bill  to  the  President  during  the  time  given  him  by  the  Constitution  for 
an  examination  of  its  provisions  and  for  approving  it  by  his  signature, 
Congress  puts  it  out  of  his  power  to  return  it,  not.. approved,  within  that 
time  to  the  House  in  which  it  originated,  then  the  bill  falls,  and  does  not 
become  a  law.  Whether  the  President  can  sign  a  bill  after  the  final  adjourn- 
ment of  Congress  for  the  session  is  a  question  not-  arising  in  this  case,  and 
has  not  been  considered  or  decided  by  us.  We  adjudge  —  and  touching  this 
branch  of  the  case  adjudge  nothing  more  —  that  the  act  of  1892  having 
been  presented  to  the  President  while  Congress  was  sitting,  and  having  been 
signed  by  him  when  Congress  was  in  recess  for  a  specified  time,  but  within 
ten  days,  'Sundays  excepted,  after  it  was  so  presented  to  him,  was  effectively 
approved,  and  immediately  became  a  law,  unless  its  provisions  are  repug- 
nant to  the  Constitution." 


CHAPTEE  XL. 

THE   GENERAL  POWERS   OF  CONGRESS. 
§  259.  General  Powers. 

In  the  chapters  which  are  immediately  to  follow  will  be  taken 
np  seriatim  the  legislative  powers  of  Congress  except  in  so  far 
as  these  powers  have  been  considered  incidentally  elsewhere  in 
this  treatise. 

In  addition  to  its  legislative  powers  the  Houses  of  Congress 
have  certain  other  powers,  judicial  or  executive  in  character,  such 
as,  for  example,  with  reference  to  impeachments,  to  punishing 
their  members  for  disorderly  conduct,  or  their  expulsion  if  neces- 
sary, the  determination  of  contested  elections,  etc.  Each  House 
of  Congress  has  also,  it  has  been  held,  the  power  to  obtain  the 
information  necessary  for  an  intelligent  exercise  of  its  law- 
making power,  and  for  this  purpose  to  summon  witnesses,  and 
compel  the  production  of  documents,  and  to  punish  as  contempt 
disobedience  to  orders  thus  given.  These  non-legislative  duties 
are  discussed  elsewhere  in  this  treatise,  and  especially  in  the 
chapters  dealing  with  the  Separation  of  Powers. 

In  some  cases  the  powers  granted  by  the  Constitution  are  also 
made  obligations,  and,  in  general,  it  may  be  said  that  where  legis- 
lation is  necessary  to  make  effective  the  provisions  of  the  Consti- 
tution there  is  laid  upon  Congress  the  constitutional  obligation 
to  enact  this  legislation.  At  the  same  time  it  must  be  said  that 
this  obligation  is  an  '•imperfect"  one  in  that  no  legal  means 
exist  for  compelling  its  performance  or  providing  for  what  shall 
be  done  in  the  event  of  its  non-performance.  Thus  the  Constitu- 
tion provides  that  "  The  judicial  power  of  the  United  States  shall 
be  vested  in  one  Supreme  Court,  and  in  such  inferior  courts  as 
Congress  may  from  time  to  time  ordain  and  establish."  Should 
Congress  fail  by  legislation  to  establish  these  inferior  judicial 
tribunals  and  to  clothe  them  with  jurisdiction,  there  would  be 
no  constitutional  means  of  compelling  it  to  do  so.     Indeed,  by 

[573] 


574  United  States  Constitutional,  Law. 

failing  as  well  to  provide  for  the  appointment  and  remuneration 
of  Justices  of  the  Supreme  Court,  Congress  might  render  impos- 
sible the  exercise  of  any  federal  judicial  power  whatever.  Once 
established  the  Supreme  Court,  by  the  immediate  effect  of  con- 
stitutional provision,  has  the  original  jurisdiction  provided  for  in 
Section  II  of  Article  I,  but  it  is  unable  to  exercise  any  appellate 
jurisdiction  by  way  of  appeals  either  from  the  state  or  lower  fed- 
eral courts  except  as  Congress  has  by  statute  provided. 

This  is  but  a  single  illustration  of  many  that  might  be  given 
of  the  manner  in  which  the  existence  and  administration  of  the 
federal  government  is  absolutely  dependent  upon  the  action  of 
Congress.  For  it  may  be  laid  down  as  a  principle  which  admits 
of  no  exceptions  that  no  legal  means  exist  for  compelling  a  legis- 
lative body  to  enact  a  given  piece  of  legislation,  or,  indeed,  to 
perform  any  of  its  functions. 

Though,  in  many  respects,  not  self-executory,  and  the  obliga- 
tions created  by  its  provisions  not  enforceable  by  legal  process, 
the  federal  Constitution  is,  it  is  to  be  repeated,  in  all  other  re- 
spects a  law  and  directly  enforceable  as  such  in  the  courts  of  the 
land.  It  is,  as  has  been  already  said,  a  law  legislatively  enacted 
by  the  state  legislatures  or  the  state  conventions  which,  quoad  hoc 
acting  as  a  national  law-making  body,  established  it  and  ratified 
the  amendments  to  it. 


CHAPTER  XLI. 

FEDERAL  POWERS  OF  TAXATION. 

§  260.  Taxes  Defined. 

Taxes  have  been  defined  by  an  eminent  authority  to  be  "  bur- 
dens or  charges  imposed  by  the  legislative  .power  upon  persons  or 
property  to  raise  money  for  public  p.urposes."1  The  same  author 
in  another  work  observes  that  they  "  differ  from  forced  contribu- 
tions, loans,  and  benevolences  of  arbitrary  and  tyrannical  periods 
in  that  they  are  levied  by  authority  of  law,  and  by  some  rule  of 
proportion  which  is  intended  to  insure  uniformity  of  contribu- 
tion, and  a  just  apportionment  of  the  burdens  of  government"2 

The  power  to  tax  is  ordinarily  spoken  of  as  an  incident  of 
sovereignty,  or,  as  a  sovereign  power.  A  more  exact  statement  is, 
however,  that  inasmuch  as  the  raising  of  a  certain  amount  of 
revenue  is  essential  to  the  existence  and  o.peration  of  a  public 
governing  body,  that  body  has,  even  in  default  of  express  consti- 
tutional grant,  an  implied  power  to  compel  those  subject  to  its 
authority  to  contribute  the  financial  means  necessary  for  its 
support. 

The  levying  of  a  tax,  that  is  to  say,  the  determination  that  a 
given  tax  shall  be  imposed,  assessed  and  collected  in  a  certain 
manner,  is  a  legislative  function.  In  Meriwether  v.  Garrett3  the 
court  say:  "  The  levying  of  taxes  is  not  a  judicial  act.  It  has 
no  elements  of  one.  It  is  a  high  act  of  sovereignty,  to  be  per- 
formed only  by  the  legislature  upon  considerations  of  policy, 
necessity  and  the  public  welfare.  In  the  distribution  of  the 
powers  of  government  in  this  count ry  into  three  departments,  the 
power   nf   taxation  falls   to   the  legislative.      It  belongs   to   that 

i  Cooler.  Constitutional  Limitations,  7th  ed.,  p.  678. 

2  Taxation,  Ch.  I. 

3  102  U.  S.  472 ;   2G  L.  ed.   197. 

[575] 


57G  United  States  Constitutional  Law. 

department  to  determine  what  measures  shall  be  taken  for  the 
public  welfare,  and  to  provide  the  revenues  for  the  support  and 
due  administration  of  the  government  throughout  the  State  in 
all  its  subdivisions.  Having  the  sole  power  to  authorize  the  tax, 
it  must  equally  possess  the  sole  power  to  prescribe  the  means  by 
which  the  tax  shall  be  collected,  and  to  designate  the  officers 
through  whom  its  will  shall  be  enforced." 

The  determination  of  the  precise  amount  of  the  tax  which 
each  individual  or  each  piece  of  property  shall  pay  according  to 
the  general  rule  legislatively  laid  down,  is  an  administrative  act. 
The  determination  whether  the  legislative  rule  is,  constitutionally 
speaking,  a  proper  one,  and  whether  the  administrative  officials 
have  properly  followed  it,  as  well  as  observed  all  the  other  require- 
ments of  law,  is,  of  course,  a  judicial  function.  Thus  the  admin- 
istrative official  must  in  all  cases,  in  his  assessments  both  as  to 
classes  of  persons  and  kinds  of  property,  and  as  to  rates  of  taxa- 
tion, be  guided  by  the  law.  Upon  the  other  hand  the  legislature, 
when  levying  ad  valorem  taxes,  has  not  the  power  itself,  generally 
speaking,  to  declare  the  value  of  a  specific  piece,  or  of  specific 
pieces  of  property  for  taxation  purposes.4  "Where,  however,  taxes 
are  laid  not  according  to  values  of  property,  but  upon  persons,  as 
a  capitation  tax,  or  upon  occupations,  as  license  fees  and  tolls, 
or  upon  documents,  as  stamp  duties,  or  upon  number  or  quantities 
of  goods  ("  specific  "  taxes),  the  legislature  fixes  in  each  case  the 
amount  of  the  contribution. 

§  261.  Taxation  and  Eminent  Domain. 

The  levying  and  collection  of  taxes  amounts,  of  course,  to  the 
taking  of  private  property  for  a  public  use,  but  the  taxing  power 
is  distinct  from  that  of  eminent  domain.  "When  property  is  taken 
in  exercise  of  the  latter  power  the  Fifth  Amendment  requires 
that  the  Federal  Government  shall  make  just  compensation. 
When,  however,  property  is  taken  under  the  taxing  power  the 

<  This  question  will  be  further  considered  in  connection  with  the  subject 
of  special  assessments. 


Federal  Powers  of  Taxattox.  577 

persons  so  taxed  are  held  compensated  by  the  special  benefits 
received.  Cooley  observes  that  while  taxation  and  eminent 
domain  rest  upon  substantially  the  same  basis  in  that  they  both 
imply  the  taking  of  private  property  for  the  public  use,  the  com- 
pensation made  is  different  in  the  two  cases.  "  When  taxation 
takes  money  for  the  public  use,  the  taxpayer  receives,  or  is  sup- 
posed to  receive,  his  just  compensation  in  the  protection  which 
government  affords  to  life,  liberty,  and  property,  in  the  public 
conveniences  which  it  provides,  and  in  the  increase  in  the  value 
of  possessions  which  comes  from  use  to  which  the  government 
applies  the  money  raised  by  the  tax;  and  these  benefits  amply 
support  the  individual  burdem"5 

§  262.  The  Extent  of  the  Taxing  Power. 

The  power  to  tax  is,  from  its  very  nature,  one  of  the  most 
important  powers  possessed  by  the  State.  Aside  "from  express 
constitutional  limitations,  the  power  places  every  person,  every 
occupation,  and  all  forms  of  property  subject  to  such  pecuniary 
burdens  as  the  legislature  may  see  fit  to  impose,  the  manner  of 
apportioning  and  enforcing  the  collections  of  the  contributions 
levied  being  within  the  discretion  of  the  law-making  body  which 
imposes  theni. 

A  classic  statement  of  the  extent  of  the  taxing  power  is  that 
of  Marshall  in  McCulloch  v.  Maryland.0  Marshall  says:  "The 
power  of  taxing  the  people  and  their  property  is  essential  to  the 
very  existence  of  government,  and  may  be  legitimately  exercised 
on  the  objects  to  which  it  is  applicable  to  the  utmost  extent  to 
which  the  government  may  choose  to  carry  it.  The  only  security 
against  the  abuse  of  this  power  is  found  in  the  structure  of  the 
government  itself.  In  imposing  a  tax,  the  legislature  acts  upon 
its  constituents.  This  is,  in  general,  a  sutHeient  security  against 
erroneous  and  oppressive  taxation.  The  people  of  a  State,  there- 
fore, give  to  their  government  a  right  of  taxing  themselves  and 

5  Const.  Km.,  7th  ed.,  p.  715. 
«4  Wh.  316;  4  L.  ed.  579. 

37 


578  United  States  Constitutional  Law. 

their  property,  and  as  the  exigencies  of  the  government  cannot 
be  limited,  they  prescribe  no  limit  to  the  exercise  of  this  right, 
resting  confidently  on  the  interest  of  the  legislator  and  on  the 
influence  of  the  constituents  over  their  representatives  to  guard 
themselves  against  its  abuse."  "  The  power  to  tax,"  Marshall 
concludes,  "  involves  the  power  to  destroy." 

§  263.  The  Use  of  the  Taxing  Power,  not  for  Revenue  but  for 
Regulation. 

By  definition  and  by  primary  purpose  a  tax  is  a  means  whereby 
a  public  governing  power  seeks  to  secure  a  revenue.  It  has  been 
generally  held,  however,  that  a  tax  may  be  levied  avowedly  and 
exclusively  not  for  revenue  but  as  a  means  for  regulating  a  matter 
which  is  within  the  legislature's  power  to  control.  Thus  in 
Veazie-Bank  v.  Fenno7  the  power  of  Congress  to  levy  a  tax  as  a 
means  of  regulating  the  currency  is  upheld,  Chief  Justice  Chase 
rendering  the  opinion.  The  court  say :  "  Having  thus,  in  the 
exercise  of  undisputed  constitutional  powers,  undertaken  to  pro- 
vide a  currency  for  the  whole  country,  it  cannot  be  questioned 
that  Congress  may,  constitutionally,  secure  the  benefit  of  it  to 
the  people  by  appropriate  legislation.  To  this  end,  Congress  has 
denied  the  quality  of  legal  tender  to  foreign  coins,  and  has  pro- 
vided by  law  against  the  imposition  of  counterfeit  and  base  coin 
in  the  community.  To  the  same  end,  Congress  may  restrain,  by 
suitable  enactments,  the  circulation  as  money  of  any  no£ps  not 
issued  under  its  own  authority.  Without  this  power,  indeed,  its 
attempts  to  secure  a  sound  and  uniform  currency  for  the  country 
must  be  futile.  Viewed  in  this  light,  as  well  as  in  the  other  light 
of  a  duty  on  contracts  or  property,  we  cannot  doubt  the  constitu- 
tionality of  the  tax  under  consideration." 

In  the  so-called  Head  Money  Cases  —  Edye  v.  Robertson8 — 
was  contested  an  act  of  Congress  of  1882  which,  for  the  regula- 
tion of  immigration,  imposed  upon  the  owners  of  steam  or  sailing 
vessels  bringing  passengers  from  a  foreign  port  into  the  United 

7  8  Wall.  533;   19  L.  ed.  482. 

8  112  U.  S.  580;  5  Sup.  Ct.  Rep.  247;  28  L.  ed.  798. 


Fedekae  Powers  of  Taxation.  579 

States,  a  tax  of  fifty  cents  for  every  such  passenger.  To  this 
law  it  was  objected  that  it  was  not  levied  to  provfde  for  the  com- 
mon defense  and  general  welfare  of  the  United  States  and  that 
it  was  not  uniform  throughout  the  United  States  as  required  by 
the  Constitution.  After  disposing  of  the  question  of  uniformity, 
the  court  say :  "  But  the  true  ansvier  to  all  these  questions  is, 
that  the  power  exercised  in  this  instance  is  not  the  taxing  power. 
The  burden  imposed  on  the  ship  owner  by  this  statute  is  the  mere 
incident  of  the  regulation  of  commerce,  of  that  branch  of 
foreign  commerce  which  is  involved  in  immigration.  The  title 
of  the  Act,  'An  Act  to  Regulate  Immigration,'  is  well  chosen. 
It  describes  as  well  as  any  short  sentence  can  describe  it,  the  real 
purpose  and  effect  of  the  statute.  Its  provisions,  from  beginning 
to  end,  relate  to  the  subject  of  immigration,  and  they  are  aptly 
designed  to  mitigate  the  evils  inherent  in  the  business  of  bring- 
ing foreigners  to  this  country,  as  those  evils  affect  both  the  immi- 
grant and  the  people  among  whom  he  is  suddenly  brought  and 
left  to  his  own  resources.  It  is  true  not  much  is  said  about  pro- 
tecting the  ship  owner.  But  he  is  the  man  who  reaps  the  profit 
from  the  transaction,  who  has  the  means  to  protect  himself  and 
knows  well  how  to  do  it,  and  whose  obligations  in  the  premises 
need  the  aid  of  the  statute  for  their  enforcement.  The  sum 
demanded  of  him  is  not,  therefore,  strictly  speaking,  a  tax  or 
duty  within  the  meaning  of  the  Constitution.  The  money  thus 
raised,  though  paid  into  the  Treasury,  is  appropriated  in  advance 
to  the  uses  of  this  statute,  and  does  not  go  to  the  general  support 
of  the  government.  It  constitutes  a  fund  raised  from  those  who 
are  engaged  in  the  transportation  of  these  passengers,  and  who 
make  a  profit  out  of  it,  for  the  temporary  care  of  the  passengers 
whom  they  bring  among  us  and  for  the  protection  of  the  citizens 
among  whom  they  are  landed.  If  this  is  an  expedient  regula- 
tion of  commerce  by  Congress,  and  the  end  to  be  attained  is  one 
falling  within  that  power,  the  Act  is  not  void  because,  within 
a  loose  and  more  extended  sense  than  was  used  in  the  Constitu- 
tion, it  is  called  a  tax." 


580  United  States  Coxstitutioxal  Law. 

In  Packet  Co.  v.  Keokuk,9  and  Packet  Co.  v.  St.  Louis-10  munic- 
ipal ordinances  imposing  taxes  for  the  use  of  wharves  belonging 
to  the  cities-,  the  amount  of  which  -was  regulated  by  the  tonnage 
of  the  vessels,  were  held  not  to  be  tonnage  taxes  within  the  mean- 
ing of.  the  constifutional  provision  that  "  no  State  shall,  without 
the  consent  of  Congress,  lay  any  duty  of  tonnage." 

In  these  cases  it  is  seen  that  the  view  taken  is  that  though  the 
laws  levy  a  contribution  to  the  State  and  thus  result  in  a  revenue 
to  the 'State,  they  are  not,  correctly  speaking,  tax  laws  at  all.  Xot 
being,  in  fact,  tax  laws,  they  are  not  subject  to  the  constitutional 
limitations  upon  revenue  measures  as  regards  uniformity,  appor- 
tionment, etc. 

A-  different  proposition  from  the  one  just  discussed,  is  that  a 
legislature,  by  a  law  framed  as  a  tax  measure,  may,  in  effect, 
subject  to  regulation  or  even  to  destruction  an  enterprise  over 
which  it  has  no  direct  power  of  control.  This  point  was  squarely 
raised,  with  reference  to  the  power  of  the  Federal  Government 
in  the  comparatively  recent  case  of  HcCray  v.  United  States,11 
decided  in  1904. 

In  this  case  was  questioned  the  constitutionality  of  a  law  of 
Congress  levying  a  tax  of  ten  cents  a  pound  upon  oleomargarine, 
artificially  colored  to  look  like  butter.  The  contention  was  that 
this  rate  was  so  high  as  to  be  surely  prohibitive  of  the  manu- 
facture and  sale  of  such  oleomargarine,  and  that,  therefore,  it 
was  to  be  presumed  that  the  motive  of  those  enacting  the  law 
was  not  that  a  revenue  should  be  secured  for  the  Federal  Govern- 
ment, but  that  the  manufacture  should  be  prevented ;  and  this,  it 
was  argued,  rendered  the  law  an  unconstitutional  effort  upon 
the  part  of  Congress  to  regulate  the  manufacture  of  a  commodity 
within  the  States.  The  Supreme  Court,  however,  held  that  the 
law  being  upon  its  face  a  revenue  measure,  its  ultimate  effect  or 
the  motives  e&  its  enactors  migfet  not  he  judicially  inquired  into. 
The  scope  and  effect  of  a  law  may  be  inquired  into,  the  court  say, 
to  determine  whether  the  act  is,  in  general  character,  within  the 
legislative  power  of  Congress^  but.  that  determined  in  the  affirma- 

•  ©5  U.  S.  80:  24  L.  ed.  377. 

io  100  U.  S.  423;  25  L.  ed.  688. 

ii  195  U.  S.  27 ;  24  Sup.  Ct.  Rep.  7£9 ;  49  L.  ed.  78. 


Federal  Poweks  of  Taxation.  581 

tire,  the  measure  may  not  be  invalidated  because  of  consequences 
that  may  arise  from  its  enforcement.  ''  Undoubtedly,"  the 
opinion  declares,  "  in  determining  whether  a  particular  act  is 
within  the  granted  power,  its  scope  and  effect  is  to  be  considered. 
Applying  this  rule  to  the  acts  assailed,  it  is  self-evident  that  on 
their  face  they  levy  an  excise  tax.  This  being  their  necessary 
scope  and  operation,  it  follows  that  the  acts  are  within  the  grant 
of  power." 

In  Knowlton  v.  Moore12  it  was  argued  that  inheritance  taxes 
levied  by  Congress  were  unconstitutional  in  that  the  effect  of  their 
extreme  enforcement  would  or  might  be  to  destroy  the  right  "to 
succession  to  property  on  the  occasion  of  death,  a  subject  beyond 
the  control  of  Congress.  As  to  this  the  court  say :  "  This  principle 
is  pertinent  only  when  there  is  no  power  to  tax  a  particular  sub- 
ject, and  lias  no  relation  to  a  case  where  such  Tight  exists.  In 
other  words,  the  power  to  destroy,  which  may  be  the  consequence 
of  taxation,  is  a  reason  only  that  the  right  to  tax  should  be  con- 
fined to  subjects  which  may  be  lawfully  embraced  therein,  "even 
athough  it  happens  that  in  some  particular  instance  no  great  harm 
may  be  caused  by  the  exercise  of  the  taxing  authority  as  to  a  jsub- 
jeet  which  is  beyond  its  scope.  But  this  reasoning  has  no  appli- 
cation to  a  lawful  tax,  for  if  it  had  there  would  be  an  end  of  all 
taxation;  that  is  to  say,  if  a  lawful  tax  can  be  defeated  because 
the  power  which  is  manifested  by  its  imposition  may,  when  fur- 
ther exercised,  be  destructive  it  would  follow  that  every  lawful 
tax  would  become  unlawful,  and  therefore  no  taxation  whatever 
could  be  levied."13 

The  McCray  case  is,  it  will  be  seen,  in  one  respect  the  opposite 
of  Yeazie  v.  Fenno  and  the  Head  Money  Case*,  in  that  it  holds 
the  law  in  question  to  be  a  tax  law  and  constitutional  because  it 
is  such ;  whereas,  in  the  earlier  eases,  the  laws  were  justified  as 
being,  in  real  character,  not  revenue  measures  at  all,  and.  there- 
fore, not  subject  to  the  limitations  constitutionally  imposed  upon 
Congress  when  enacting  revenue  laws. 

«T78  F.  B.  41:   20  Sup.  Ct.  Rep.  747:  44  L.  ed.  000. 

M  Fnr  a  criticism  of  McCray  v.  United  States,  see  Mirhirjan  Law  Heri'ir, 
VT,  277.  article  entitled  •'  May  Congress  Levy  Money  Exactions,  Designated 
'Taxes,'  Solely  for  the  Purpose  of  Destruction?" 


582  United  States  Constitutional  Law. 

§  264.  Federal  Powers  of  Taxation. 

By  section  VIII  of  Article  I  of  the  Constitution,  Congress  is 
given  the  general  power  "  to  lay  and  collect  taxes,  duties,  im- 
posts and  excises."14 

§  265.  "  Tax,"  "  Duty,"  "  Impost,"  and  "  Excise  "  Defined. 

Duty  and  impost  have  a  broad  signification  which  makes  them 
practically  synonymous  with  the  general  term  tax ;  more  generally, 
however,  they  are  given  a  narrower  meaning  according  to  which 
they  become  equivalent  to  customs  or  customs  dues,  that  is,  to 
taxes  levied  upon  goods  imported  from  foreign  countries. 

An  excise  is  an  inland  tax  upon  manufacture  or  retail  sale 
of  commodities.  It  is  thus  often  termed  a  consumption  tax.  In 
the  United  States  the  excise  taxes  are  more  generally  known  as 
internal  revenue  duties.15 

The  general  power  to  levy  taxes  being  given,  the  Constitution 
enumerates  duties,  imposts  and  excises  as  the  classes  of  taxes 
which  are  to  be  levied  uniformly  throughout  the  United  States.16 

§  266.  Limitations  Upon  the  Federal  Taxing  Power. 

The  power  of  taxation  given  to  the  Federal  Government  is  com- 
prehensive and  complete,  embracing  all  possible  subjects  and 
modes  of  taxation  except  in  so  far  as  the  Constitution,  in  other 
clauses,  expressly  limits  the  power,  or  except  in  so  far  as  limita- 
tions may  be  implied  from  the  general  character  of  the  American 
constitutional  system.  The  express  limitations  are:  (1)  That 
"  all  duties,  imposts,  and  excises  shall  be  uniform  throughout  the 
United  States";'717    (2)   that  "  no  capitation  or  other  direct  tax 

M  The  clause  continues :  "  to  pay  the  debts  and  provide  for  the  common 
defense  and  general  welfare  of  the  United  States."  That  this  is  not  a  gen- 
eral grant  of  power  to  the  United  States  to  pay  the  debts  and  provide  for 
the  common  defense  and  general  welfare,  but  is  merely  a  statement  of  the 
purpose  for  which  the  power  to  lay  and  collect  taxes,  etc.,  is  granted.  See 
ante,  Section  22.  Cf.  Story,  Commentaries,  §§  902-026;  Tucker,  Constitution, 
§  222;  The  License  Tax  Cases,  5  Wall.  462;  18  L.  ed.  497;  Knowlton  v.  Moore, 
178  U.  S.  41;  20  Sup.  Ct.  Rep.  747;  44  L.  ed.  969. 

is  For  a  discussion  of  the  various  definitions  of  excise,  duty  and  impost, 
see  Pacific  Insurance  Co.  v.  Soule,  7  Wall.  433;  19  L.  ed.  95. 

"Hylton  v.  United  States,  3  Dall.  171;  1  L.  ed.  556. 

"Art.  I,  Sec.  VIII,  CI.  1. 


Federal  Powers  of  Taxation.  583 

shall  be  laid,  unless  in  proportion  to  the  census  or  enumeration 
hereinbefore  directed  to  be  taken;18  and  (3)  thai  "  no  tax  or  duty 
shall  be  laid  on  articles  exported  from  any  State.19 

The  implied  limitations  upon  the  federal  taxing  power  are 
those  that  relate  to  the  general,  if  not  absolute,  exemption  of 
state  governmental  agencies  from  federal  interference,  whether 
by  way  of  taxation  or  otherwise,20  and  those  arising  out  of  all 
the  express  limitations  upon  the  Federal  Government,  which,  of 
course,  are  as  operative  when  the  Federal  Government  is  exercis- 
ing its  taxing  powers,  as  it  is  when  employing  any  of  the  other 
rights  possessed  by  it.  Thus,  for  example,  the  United  States 
may  not,  under  the  guise  of  a  tax,  take  property  without  due 
process  of  law. 

§  267.  Due  Process  of  Law  and  Taxation. 

We  have  already  seen  that  the  taking  of  private  property  by 
the  State  in  exercise  of  the  taxing  power  is  not  brought  within 
the  constitutional  requirement,  applicable  in  the  case  of  property 
taken  under  the  power  of  eminent  domain,  that  direct  pecuniary 
compensation  therefor  shall  be  made.  •  In  like  manner  the^taking 
of  private  property  in  the  form  of  taxes,  is  not,  in  itself,  a  taking 
of  property  without  due  process  of  law. 

In  Davidson  v.  Xew  Orleans21  the  Supreme  Court  after  con- 
sidering the  meaning  of  the  phrase  "  due  process  of  law  "  as  em- 
ployed in  the  Fourteenth  Amendment,  and  after  adverting  to  the 
difficulty  of  stating  affirmatively  and  completely  the  protection 
afforded  by  it,  go  on  to  say  that  they  can  at  least  state  some  of 
the  cases  which  do  not  fall  within  its  application,  and  among 
these,  they  say,  "  we  lay  down  the  following  propositions  as 
applicable  to  the  case  before  us:  that  whenever  by  the  laws  of  a 
State,  or  by  state  authority,  a  tax,  assessment,  servitude,  or  other 
burden  is  imposed  upon  property  for  the  public  use,  whether  it 
be  of  the  whole  State  or  of  some  more  limited  portion  of  the 

is  Art.  I,  Sec.  VII,  CI.  4. 
19  Art.  I,  Sec.  VIII,  CI.  5. 

See  Sections  57-60. 
2196  U.  S.  97;   24  L.  ed.  616 


58-i  United  States  Constitutional,  Law. 

community,  and  those  laws  provide  for  a  mode  of  confirming  or 
contesting  the  charge  thus  imposed,  in  the  ordinary  courts  of 
justice,  with  such  notice  to  the  person  or  such  proceeding  in 
regard  to  the  property  as  is  appropriate  to  the  nature  of  the  case, 
the  judgment  in  such  proceedings  cannot  be  said  to  deprive  the 
owner  of  his  property  without  due  process  of  law,  however 
obnoxious  it  may  be  to  other  objections.  It  may  violate  some 
provision  of  the  state  Constitution  against  unequal  taxation,  but 
the  .Federal  Government  imposes  no  restraints  on  the  States  in 
that  regard.  .  .  .  It  is  said  that  plaintiff's  property  had  pre- 
viously been  assessed  for  the  same  purpose,  and  the  assessment 
paid.  If  this  be  meant  to  deny  the  right  of  the  State  to  tax  or 
assess  property  twice  for  the  same  purpose,  we  know  of  no  provi- 
sion in  the  federal  Constitution  which  forbids  this,  or  which 
forbids  unequal  taxation  by  the  States.  If  the  act  under  which 
the  former  assessment  was  made  is  relied  on  as  a  contract  against 
further  assessments  for  the  same  purpose,  we  concur  with  the 
Supreme  Court  of  Louisiana*  in  being  unable  to  discover  such  a 
contract." 

From  the  foregoing  it  is  apparent  that  the  taking  of  private 
property  in  the  form  of  taxes  is  not,  in  itself,  a  taking  of  private 
property  without  due  process  of  law  because  no  direct  compensa- 
tion is  made  for  the  property  thus  taken.  Though  the  taking  of  the 
property  in  the  form  o,f  a  tax  is  thus  not  in  itself  a  taking  without 
due  process,  it  may  become  such  by  reason  of  the  purpose  for 
which,  or  the  manner  in  which,  the  tax  is  levied,  assessed  and 
collected. 

Due  process  of  law  obliges  the  United  States  as  well  as  the 
individual  States,  in  the  exercise  of  their  taxing  powers,  to  con- 
form to  the  following  rules : 

1.  That  the  tax  shall  be  for  a  public  purpose. 

2.  That  it  shall  operate  uniformly  upon  those  subject  to  it 

3.  That  either  the  person  or  the  property  taxed  shall  be  within 
the  jurisdiction  of  the  government  levying  the  tax. 

4.  That  in  the  assessment  and  collection  of  the  tax  certain 
guarantees  against  injustice  to  individuals,  especially  by  way  of 
notice  and  opportunity  for  a  hearing,  shall  be  provided. 


;  jral  Poweks  OK  Taxation.  585 

§  268.  Taxation  Must  Be  for  a  Public  Purpose. 

A  tax  being  in  the  eyes  of  the  law  an  enforced  contribution 
upon  persona  or  property  to  raise  money  for  a  public  purpose,  it 
follows  that  where  this  public  purpose  is  absent,  the  contri- 
bution sought  to  be  enforced  cannot  be  justiiied  as  a  tax  but 
amounts  to  an  attempt  to  take  property  without  due  process  of 
law.  The  validity  of  this  proposition  is  beyond  dispute,  but 
judicial  records  furnish  comparatively  few  instances  of  tax  levies 
being  held  void  for  this  reason.  This  is  due,  in  the  lirst  place, 
t'»  the  fact  that  not  often  do  the  laws  expressly  state  the  purpose 
for  which  a  tax  is  levied  ;  and,  in  the  second  place,  where  this  pur- 
pose is  stated,  the  courts  will,  in  deference  to  the  legislative  judg- 
ment, construe  the  purpose  to  be  a  public  one  if  it  is  possible  to 
do  so.  In  Broadhead  v.  City  of  Milwaukee"  the  Supreme  Court 
of  Wisconsin  say:  i;  To  justify  the  court  in  arresting  the  pro- 
ceedings and  declaring  the  tax  void  the  absence  of  all  possible 
public  interest  in  the  purpose  for  which  the  funds  are  raised 
must  be  clear  and  palpable  to  every  mind  at  the  first  blush." 

A  leading  federal  case  with  reference  to  this  subject  is  that  of 
ition  v.  Tupeka."3  This  case  did  not  involve  a  law 
levying  a  tax,  but  one  authorizing  towns  to  issue  bonds  payable 
to  private  manufacturing  companies  to  encourage  and  aid  them 
in  establishing  their  plants  within  their  respective  limits.  It  was 
held  by  the  court  that  inasn  -  would  have  to  be  levied 

for  the  payment  of  these  bonds,  the  law  in  effect  attempted  to 
authorize  the  towns  kd  hw  taxes  in  aid  and  encouragement  of  a 
private  enterprise  and  was,  therefore,  void.  In  its  opinion  the 
court  say:  "  The  subject  of  the  aid  voted  to  railroads  by  counties 
and  towns  has  been  brought  to  the  attention  of  the  courts  of 
almost  every  State  in  the  Union.  It  has  been  thoroughly  dis- 
-  d  and  is  still  the  subject  of  discussion  in  those  courts.  It 
is  quite  true  that  a  decided  preponderance  of  authority  is  to  be 
found  in  favor  of  the  proposition  that  the  legislatures  of  the 
States,  unless  IBftfc&atad  by  some  special  provision-;  of  their  » 

22  10  Wis.  624. 

-3  20  Wall.  <;.->->:   22   L.  ed.  455. 


586  United  States  Constitutional  Law. 

stitutions,  may  confer  upon  these  municipal  bodies  the  right  to 
take  stock  in  corporations  created  to  build  railroads,  and  to  lend 
their  credit  to  such  corporations.  Also  to  levy  the  necessary  taxes 
on  the  inhabitants,  and  on  property  within  their  limits  subject 
to  general  taxation,  to  enable  them  to  pay  the  debts  thus  incurred. 
But  very  few  of  these  courts  have  decided  this  without  a  division 
among  the  judges  of  which  they  were  composed,  while  others 
have  decided  against  the  existence  of  the  power  altogether. 
State  v.  Wapello,  13  Iowa,  386;  Hanson  v.  Vernon,  27  la. 
28;  Sharpless  v.  Mayor,  24  Pa.  St.  147;  Whiting  v.  Fond 
du  Lac,  25  Wis.  188.  In  all  these  cases,  however,  the  de- 
cision has  turned  upon  the  question  whether  the  taxation  by 
which  this  aid  was  afforded  to  the  building  of  railroads  was 
for  a  public  purpose.  Those  who  came  to  the  conclusion  that 
it  was,  held  the  laws  for  that  purpose  valid.  Those  who 
could  not  reach  that  conclusion  held  them  void.  In  all  the 
controversy  this  has  been  the  turning  point  of  the  judgments 
of  the  courts.  And  it  is  safe  to  say  that  no  court  has  held 
debts  created  in  aid  of  railroad  companies  by  counties  as  valid 
on  any  other  ground  than  that  the  purpose  for  which  the  taxes 
were  levied  was  a  public  use,  a  purpose  or  object  which  it  was 
the  right  and  the  duty  of  state  governments  to  assist  by  money 
raised  from  the  people  by  taxation.  The  argument  in  opposition 
to  this  power  has  been,  that  railroads  built  by  corporations  organ- 
ized mainly  for  the  purpose  of  gain  —  the  roads  which  they  built 
being  under  their  control,  and  not  that  of  the  State  —  were  pri- 
vate and  not  public  roads,  and  the  tax  assessed  on  the  people  went 
to  swell  the  profits  of  individuals  and  not  to  the  good  of  the  State, 
or  the  benefit  of  the  public,  except  in  a  remote  and  collateral  way. 
On  the  other  hand,  it  was  said  that  roads,  canals,  bridges,  navi- 
gable streams  and  all  other  highways  had  in  all  times  been  matter 
of  public  concern.  That  such  channels  of  travel  and  of  the  carry- 
ing business  had  always  been  established,  improved,  regulated  by 
the  State,  and  that  the  railroad  had  not  lost  this  character,  because 
constructed  by  private  enterprise,  aggregated  into  a  corporation. 
We  are  not  prepared  to  say  that  the  latter  view  of  it  is  not  the 


Federal  Powers  of  Taxation.  587 

true  one,  especially  as  there  are  other  characteristics  of  a  public 
nature  conferred  on  these  corporations,  such  as  the  power  to 
obtain  right  of  way,  their  subjection  to  the  laws  which  govern 
common  carriers,  and  the  like,  which  seem  to  justify  the  proposi- 
tion. Of  the  disastrous  consequences  which  have  followed  its 
recognition  by  the  courts  and  which  were  predicted  when  it  was 
first  established  there  can  be  no  doubt.  But  in  the  case  before 
us,  in  which  the  towns  are  authorized  to  contribute  aid  by  way 
of  taxation  to  any  class  of  manufacturers,  there  is  no  difficulty 
in  holding  that  this  is  not  such  a  public  purpose  as  we  have  been 
considering.  If  it  be  said  that  a  benefit  results  to  the  local  public 
of  a  town  by  establishing  manufactures,  the  same  may  be  said 
of  any  other  business  or  pursuit  which  employs  capital  or  labor. 
The  merchant,  the  mechanic,  the  inn-keeper,  the  banker,  the 
builder,  the  steamboat  owner  are  equally  promoters  of  the  public 
good,  and  equally  deserving  the  aid  of  the  citizens  by  forced  con- 
tributions. Xo  line  can  be  drawn  in  favor  of  the  manufacturer 
which  would  not  open  the  coffers  of  the  public  treasury  to  the 
importunities  of  two-thirds  of  the  business  men  of  the  city  or 
town." 

The  purpose  for  which  local  governing  bodies  may  be  author- 
ized to  lay  and  collect  taxes  must  be  not  only  public  in  character, 
but  must,  generally  speaking,  relate  strictly  to  the  locality  con- 
cerned. In  other  words,  a  State  may  not  compel  a  local  body  to 
levy  a  local  tax  for  the  benefit  wholly  or  in  considerable  part  of 
another  community.24 

24  In  Morford  v.  Unger  (8  Iowa.  S2)  the  Supreme  Court  of  Iowa  say:  "  Con- 
ceding to  the  General  Assembly  a  wide  range  of  discretion  as  tn  the  objects 
of  taxation,  the  kind  of  property  to  be  made  liable,  and  the  extent  of 
the  territory  within  which  the  local  tax  may  operate,  there  must  be  some 
limit  to  this  legislative  discretion,  which,  in  the  absence  of  any  other  criterion, 
is  held  to  consist  in  the  discrimination  to  be  made  between  what  may 
reasonably  be  deemed  a  just  tax,  one  which  a  just  compensation  is  pro- 
vided in  the  objects  to  which  it  is  to  be  devoted,  and  that  which  is  palpably 
not  a  tax,  but  which,  under  the  form  of  a  tax.  is  the  taking  of  private  prop- 
erty for  the  public  use  without  just  compensation.  If  there  be  such  a 
flagrant  and  palpable  departure  from  equality  in  the  burden  imposed,  if  it  be 
imposed  for  the  benefit  of  others,  and  for  purposes  in  which  those  objecting 
have  no  interest,  and  are,  therefore,  not  bound  to  contribute,  it  is  no  matter 


588  United  States  Constitutional  Law. 

§  269.  Power  of  Congress  to  Appropriate  Money. 

A  parity  of  reasoning  would  seem  to  provide  the  principle  that 
inasmuch  as  taxes  must  be  for  a  public  purpose,  an  appropriation 
«f  the  proceeds  of  taxes  should  be  for  a  public  purpose.  Further- 
more, it  would  seem  to  be  not  unreasonable  to  argue  that  the 
Federal  Government  being  one  of  limited  enumerated  powers. 
Congress  has  not  the  authority  to  appropriate  money  except  as 
required  for  the  performance  of  the  duties  thus  constitutionally 
laid  upon  it.  In  fact,  however,  the  limitation  that  an  appropria- 
tion should  be  for  a  public  purpose  has  been  without  practical 
effect,  as  the  courts  have  in  no  case  attempted  to  hold  invalid  an 
appropriation  by  Congress  on  the  ground  that  it  has  been  for  a 
purpose  not  public  in  character;  and,  as  regards  the  restriction 
that  appropriations  shall  be  in  aid  of  enterprises  which  the  Fed- 
eral Government  is  empowered  to  undertake,  the  doctrine  lias 
become  an  established  one  that  Congress  may  appropriate  money 
in  aid  of  matters  which  the  Federal  Government  is  not  consti- 
tutionally able  to  administer  and  regulate. 

The  authority  of  Congress  to  appropriate  money  for  internal 
improvements  within  a  State,  although  the  Federal  Government 
has  not  itself  the  authority  to  construct  or  operate  such  improve- 
ments, is  discussed  by  President  Monroe  in  connection  with  the 
veto  in  1822  of  the  Cumberland  Road  Bill,  and  by  President 
Jackson  in  his  veto  in  1830  of  the  Maysville  Turnpike  BilL 

In  a  paper  entitled  "  Views  of  the  President  of  the  United 
States  on  the  Subject  of  Internal  Improvements,"  submitted  in 
connection  with  his  veto,  President  Monroe  takes  the  position  that 
though  Congress  has  not  the  constitutional  power  to  provide  for 
the  construction  or  operation  under  federal  direction  of  reads. 
canals  or  other  internal  improvements  within  the  States,  it  has 
the  power  to  appropriate  money  in  aid  of  such  improvements. 

* : . 

in  what  form  the  power  is  exercised  —  whether  in  the  unequal  levy  of  the 
tax,  or  in  the  regulation  of  the  boundaries  of  local  government,  which  re- 
sults in  subjecting  the  party  unjustly  to  local  taxes,  it  must  be  regarded 
as  coming  within  the  prohibition  of  the  Constitution  designed  to  protect 
private  rights  against  aggression,  however  made,  and  whether  under  the 
color  of  recognized  power  or  not."     Vf.  McGehee,  Due  Process  of  Laic,  231. 


Federal,  Powers  of  Taxation.  589 

The  constitutional  grant  to  Congress  of  the  power  "  to  lay  and 
collect  taxes,  duties,  imposts  and  excises,  to  pay  the  debts  and 
provide  for  the  common  defense  and  general  welfare  of  the 
United  States,"  he  very  correctly  argues  does  not  operate  to  vest 
in  the  General  Government  any  additional  powers  of  control,  but 
solely  to  authorize  that  government  to  raise  revenues  and  to 
appropriate  money  to  the  purposes  specified.  These  purposes, 
however,  he  maintains,  are  broad  enough  to  enable  Congress  to 
appropriate  money  in  aid  of  enterprises  which  the  General  Gov- 
ernment cannot  undertake  or  directly  control.20 

25 Monroe's  argument  is  as  follows:  "A  power  to  lay  and  collect  taxes, 
duties,  imposts  and  exci.-es,  subjects  to  the  call  of  Congress  every  branch  of 
the  public  revenue,  internal  and  external,  an  1  the  addition  to  pay  the  debts 
and  provide  for  the  common  defense  and  general  welfare  gives  the  right  of 
applying  the  money  raised  —  that  is,  of  appropriating  it  to  the  purposes 
specified  according  to  a  proper  construction  of  the  terms.  Hence  it  follows 
that  it  is  the  first  part  of  the  clause  only  which  gives  a  power  which  affects 
in  any  manner  the  power  remaining  to  the  States,  as  the  power  to  raise 
money  from  the  people,  whether  it  be  by  taxes,  duties,  imposts,  or  excises, 
though  concurrent  in  the  States  as  to  taxes  and  excises,  must  necessarily  do. 
But  the  use  or  application  of  the  money  after  it  is  raised  is  a  power  alto- 
gether of  a  different  character.  It  imposes  no  burden  on  the  people,  nor  can 
it  act  on  them  in  a  sense  to  take  power  from  the  States  or  in  any  sense 
in  which  power  can  be  controverted,  or  become  a  question  between  the  two 
Governments.  The  application  of  money  raised  under  a  lawful  power  is  a 
right  or  grant  which  may  be  abused.  It  may  be  applied  partially  among 
the  States,  or  to  improper  purposes  in  our  foreign  and  domestic  concerns ; 
but  still  it  is  a  power  not  felt  in  the  sense  of  other  power,  since  the  only 
complaint  which  any  State  can  make  of  such  partiality  and  abuse  is  that 
some  other  State  or  States  have  obtained  greater  benefit  from  the  applica- 
tion than  by  a  just  rule  of  apportionment  they  were  entitled  to.  The  right 
of  appropriation  is  therefore  from  its  nature  secondary  and  incidental  to  the 
right  of  raising  momv.  and  it  was  proper  to  place  it  in  the  same  grant  and 
same  clause  with  that  right.  By  finding  them,  then,  in  that  order  we  see  a 
new  proof  of  the  sense  in  which  the  grant  was  made,  corresponding  with  the 
view  herein  taken  of  it." 

Having  explained  that  the  grant  is  one  of  simply  a  power  to  appropriate. 
Monroe  then  considers  the  extent  to  which  this  power  may  be  carried.  He 
writes:  "It  is  contended  on  the  one  side  that  as  the  National  Government 
is  a  government  of  limited  powers  it  has  no  right  to  expend  money  except  in 
the  performance  of  acts  authorized  by  other  specific  grants  according  to  a 
6trict  construction  of  their  powers;  that  this  grant  in  neither  of  its  branches 
gives  to  Congress  discretionary  power  of  any  kind,  but  is  a  mere  instrument 
in  its  hands  to  carry   into  effect  the   powers  contained  in  the  other  grants. 


590  United  States  Constitutional  Law. 

Tn  President  Jackson's  veto  of  the  Itaysville  Road  Bili  prac- 
tically the  same  constitutional  position  as  that  taken  by  Monroe 
is  assumed;  the  appropriation  in  this  case,  however,  is  vetoed 
upon  the  ground  that  the  improvement  in  question  was,  in  the 

To  tins  construction  I  was  inclined  in  the  more  early  stage  of  our  Govern- 
ment; but  on  further  reflection  and  observation  my  mind  has  undergone  a 
change,  for  reasons  which  I  will  frankly  unfold.  The  grant  consists,  as  here- 
tofore observed,  of  a  twofold  power  —  the  first  to  raise,  the  second  to  appro- 
priate, the  public  money  —  and  the  terms  used  in  both  instances  are  general 
and  unqualified.  Each  branch  was  obviously  drawn  with  a  view  to  the  other, 
and  the  import  of  each  tends  to  illustrate  that  of  the  other.  The  grant  to 
raise  money  gives  a  power  over  every  subject  from  which  revenue  may  be 
drawn,  and  is  made  in  the  same  manner  with  the  grants  to  declare  war.  to 
raise  and  support  armies  and  a  navy,  to  regulate  commerce,  to  establish 
post-offices  and  post-roads,  and  with  all  the  other  specific  grants  to  the  General 
Government.  In  the  discharge  of  the  powers  contained  in  any  of  these  grants 
there  is  no  other  check  than  that  which  is  to  be  found  in  the  great  principles 
of  our  system,  the  responsibility  of  the  representative  to  his  constituents.  If 
war,  for  example,  is  necessary,  and  Congress  declares  it  for  good  cause,  their 
constituents  will  support  them  in  it.  A  like  support  will  be  given  them  for 
the  faithful  discharge  of  their  duties  under  any  and  every  other  power  vested 
in  the  United  States.  The  power  to  raise  money  by  taxes,  duties,  imposts, 
and  excises  is  alike  unqualified,  nor  do  I  see  any  check  on  the  exercise  of  it 
other  than  that  which  applies  to  the  other  powers  above  recited,  the  respon- 
sibility of  the  representative  to  his  constituents.  Congress  knows  the  extent 
of  the  public  engagements  and  the  sums  necessary  to  meet  them;  they  know 
how  much  may  be  derived  from  each  branch  of  revenue  without  pressing  it 
too  far ;  and,  paying  due  regard  to  the  interests  of  the  people,  they  likewise 
know  which  branch  ought  to  be  resorted  to  in  the  first  instance.  From  the 
commencement  of  the  Government  two  branches  of  this  power,  duties  and 
imposts,  have  been  in  constant  operation,  the  revenue  from  which  has  sup- 
ported the  Government  in  its  various  branches  and  met  its  other  ordinary 
engagements.  In  great  emergencies  the  other  two,  taxes  and  excises,  have 
likewise  been  resorted  to,  and  neither  was  the  right  nor  the  policy  called 
in  question.  If  we  look  to  the  second  branch  of  this  power,  that  which 
authorizes  the  appropriation  of  the  money  thus  raised,  we  find  that  it  is  not 
less  general  and  unqualified  than  the  power  to  raise  it.  More  comprehensive 
terms  than  to  "  pay  the  debts  and  provide  for  the  common  defense  and  general 
welfare "  could  not  have  been  used.  So  intimately  connected  with  and 
dependent  on  each  other  are  these  two  branches  of  power  that  had  either 
been  limited  the  limitation  would  have  had  the  like  effect  on  the  other.  Had 
the  power  to  raise  money  been  conditional  or  restricted^)  special  purposes, 
the  appropriation  must  have  corresponded  with  it,  for  none  but  the  money 
raided  could  be  appropriated,  nor  could  it  be  appropriated  to  other  purposes 
than  those  which  were  permitted.  On  the  other  hand,  if  the  right  of  appro- 
priation  had    been    restricted    to   certain    purposes,    it   would    be   useless   and 


Federal  Powers  of  Taxation.  591 

President's  opinion,  of  a  purely  local  character,  or,  as  he  says, 
"  if  it  can  be  considered  national,  no  further  distinction  between 
the  appropriate  duties  of  the  General  and  State  Governments 
need  be  attempted,  for  there  can  be  no  local  interest  that  may  not 
with  equal  propriety  be  denominated  national." 

in;  proper  to  raise  more  than  would  be  adequate  to  those  purposes.  It  may 
fairly  be  inferred  these  restraints  or  checks  have  been  carefully  and  inten- 
tionally avoided.  The  power  in  each  branch  is  alike  broad  and  unqualified, 
and  each  is  drawn  with  peculiar  fitness  to  the  other,  the  latter  requiring 
terms  of  great  extent  and  force  to  accommodate  the  former,  which  have  been 
adopted,  and  both  placed  in  the  same  cause  and  sentence.  Can  it  be  presumed 
that  all  these  circumstances  were  so  nicely  adjusted  by  mere  accident?  Is  it 
not  more  just  to  conclude  that  they  were  the  result  of  due  deliberation  and 
design?  Had  it  been  intended  that  Congress  should  be  restricted  in  the 
appropriation  of  the  public  money  to  such  expenditures  as  were  authorized 
hv  a  rigid  construction  of  the  other  specific  grants,  how  easy  would  it  have 
been  to  have  provided  for  it  by  a  declaration  to  that  effect.  The  omission  of 
such  declaration  is  therefore  an  additional  proof  that  it  was  not  intended 
that  the  grant  should  be  so  construed." 

"  If.  then,"  Monroe  continues,  "the  right  to  raise  and  appropriate  the  public 
money  is  not  restricted  to  the  expenditures  under  the  other  specific  grants 
according  to  a  strict  construction  of  their  powers,  respectively,  is  there  no 
limitation  to  it?  Have  Congress  a  right  to  raise  and  appropriate  to  any  and 
to  every  purpose  according  to  their  will  and  pleasure?  They  certainly  have 
not.  The  Government  of  the  United  States  is  a  limited  Government,  insti- 
gated Jor  great  national  purposes,  and  for  those  only.  Other  interests  are 
committed  to  the  States,  whose  duty  it  is  to  provide  for  them.  Each  govern- 
ment should  look  to  the  great  and  essential  purposes  for  which  it  was 
instituted  and  confine  itself  to  those  purposes.  A  state  government  will 
rarely  if  ever  Apply  money  to  national  purposes  without  making  it  a  charge 
to  the  nation.  The  people  of  the  State  would  not  permit  it.  Xor  will  Congress 
bo  apt  to  apply  money  in  aid  of  the  state  administrations  for  purposes 
strictly  local  in  which  the  nation  at  large  has  no  interest,  although  the  State 
should  desire  it.  The  people  of  the  other  States  would  condemn  it.  They 
would  declare  that  Congress  had  no  right  to  tax  them  for  such  a  purpose, 
and  dismiss  at  the  next  election  such  of  their  representatives  as  had  voted  for 
the  measure,  especially  if  it  would  be  severely  felt.  I  do  not  think  that  in 
offices  of  this  kind  there  is  much  danger  of  the  two  governments  mistaking  their 
interest!  or  their  duties.  I  rather  expect  that  they  would  soon  have  a  clear 
and  distinct  understanding  of  them  and  move  on  in  great  harmony.  Good 
roads  and  canals  will  promote  many  very  important  national  purposes.  They 
will  facilitate  the  operations  of  war,  the  movements  of  troops,  the  transporta- 
tion of  cannon,  of  provisions,  and  every  warlike  store,  much  to  our  advantage 
and  to  the  disadvantage  of  the  enemy  in  time  of  war.  Good  roads  will  facili- 
tate   the   transportation    of   the   mail,   and   thereby   promote   the   purposes   of 


592  United  States  Constitutional  Law. 

The  extent  of  the  appropriating  power  of  Congress  is  illus* 
trated  in  the  case  of  United  States  v.  Realty  Co.,20  in  which  was 
upheld  the  power  of  Congress  to  appropriate  money  for  the  pay- 
ment of  certain  claims  which  the  Federal  Government  was  not 
legally  but  only  morally  obligated  to  satisfy.  The  court  said: 
u  We  are  of  opinion  that  the  parties  in  these  actions  .  . 
acquired  claims  upon  the  Government  of  an  equitable,  moral  or 
honorary  nature  .  .  .  Congress  has  power  to  lay  and  collect 
taxes,  etc.,  '  to  pay  the  debts  '  of  the  United  States.  Having 
the  power  to  raise  money  for  that  purpose,  it  of  course  follows 
that  it  has  power  when  the  money  is  raised  to  appropriate  it  to 
the  same  object  .  .  .  The  term  '  debts '  includes  those  debts 
or  claims  which  rest  upon  a  merely  equitable  or  honorary  obliga- 
tion, and  which  would  not  be  recoverable  in  a  court  of  law  if  ex- 
isting against  an  individual.  .  .  .  Payments  to  individuals, 
not  of  right  or  of  a  merely  legal,  claim,  but  payments  in  the  na- 
ture of  gratuity,  yet  having  some  feature  of  moral  obligation  fo 
support  them,  have  been  made  by  the  government  by  virtue  of 
acts  of  Congress,  appropriating  the  public  money,  ever  since  its 
foundation.     Some  of  the  acts  were  based  upon  considerations  of 

commerce  and  political  intelligence  among  the  people.  Tliey  will  by  being 
properly  directed  to  these  objects  enhance  the  value  of  our  vacant  laifiJs,  a 
treasure  of  vast  resource  to  the  nation.  To  the  appropriation  of  the  public 
money  to  improvements  having  these  objects  in  view  and  carried  to  a  certain 
extent  I"  do  not  see  any  well-founded  constitutional  objection.  .  .  .  The 
right  of  appropriation  is  nothing  more  .than  a  right  to  apply  the  public 
money  to  this  or  to  that  purpose.  It  has  no  incidental  power,  nor  does  it 
draw  after  it  any  consequences  of  that  kind.  All  that  Congress  could  do 
under  it  in  the  case  of  internal  improvements  would  be  to  appropriate  the 
money  necessary  to  make  them.  For  every  act  requiring  legislative  sanction 
or  support  the  state  authority  must  be  relied  on.  The  condemnation  of 'the 
land,  if  the  proprietors  should  refuse  to  sell  it,  the  establishment  of  turn- 
pikes and  tolls,  and  the  protection  of  the  work  when  finished  must  be  done  by 
the  State.  To  these  purposes  the  powers  of  the  General  Government  are 
believed  to  be  utterly  incompetent.     .      .  The  substance  of  what  has  been 

urged  on  this  subject  may  be  expressed  in  a  few  words.  My  idea  is  that 
Congress  have  an  unlimited  power  to  raise  money,  and  tliat  in  its  appropria- 
tion they  have  a  discretionary  power,  restricted  only  by  the  duty  to  appro- 
priate it  to  purposes  of  common  defense  and  of  general,  not  local,  national, 
not  state,  benefit." 

2«163  U.  S-.  427;  1G  Pup.  Ct.  Rep.  1120;  41  L.  ed.  215. 


Fedekae  Powees  of  Taxation.  593 

pure  charity.27  ...  In  regard  to  the  question  whether  the  facts 
existing  in  any  given  case  bring  it  within  the  description  of  that 
class  of  claims  which  Congress  can  and  ought  to  recognize  as 
founded  upon  equitable  and  moral  considerations  and  grounded 
upon  principles  of  right  and  justice,  we  think  that  generally  such 
question  must  in  its  nature  be  one  for  Congress  to  decide  for  itself. 
Its  decision  recognizing  such  a  claim  and  appropriating  money 
for  its  payment  can  rarely,  if  ever,  be  the  subject  of  review  by  the 
judicial  branch  of  the  Government" 

§  270.  Equality  in  Taxation. 

The  Fourteenth  Amendment  requires  upon  the  part  of  the 
States  that  they  shall  not  deny  to  any  persons  within  their  several 
jurisdictions  the  equal  protection  of  the  laws,  and  this  obligation 
is,  of  course,  operative  in  the  field  of  taxation.  No  similarly 
phrased  obligation  is  laid  upon  the  Federal  Government,  but  the 
provision  of 'the  Fifth  Amendment  forbidding  the  taking  of 
property  without  due  process  of  law  imposes  an  obligation  broad 
enough  to  cover  all  or  nearly  all  cases  of  unequal  protection  of  the 
laws.  And,  furthermore,  as  to  taxes  it  is  specifically  provided 
that  they  shall  be  uniform  throughout  the  United  States.28 

Whether  or  not  the  equal  protection  of  the  laws  is  included 
within  the  general  protection  against  the  taking  of  life,  liberty, 
or  property  without  due  process  of  law,  the  provision  for  equal 
protection  does  certainly  mark  off  a  specific  right  or  a  group  of 
rights  within  the  general  field  of  rights  against  the  violation  of 
which  by  the  States  he  is  guaranteed  by  the  Constitution.  That 
this  protection  applies  within  ihe  field  of  taxation  is  well  estab- 
lished. A  case  clearly  stating  this  doctrine  is  that  of  County  of 
Santa  Clara  v.  S.  Pacific  E.  R.  Co.,28*  in  which  Justice  Field 
rendered  the  opinion.     "  With  the  adoption  of  the  Fourteenth 

27  Senator  Daniel  in  a  speech  on  the  Blair  Educational  Bill  enumerated 
some  forty  instances  in  which  Congress  had  appropriated  money  to  private 
individuals.     Cong.  Record,  XXI,  Pt.  3,  p.  2295,  1890. 

zsThe  Tnsular  Cases  held  that  this  clause  has  no  application  to  unincor- 
porated Territories. 

-  i  18  Fed.  Rep.  385. 

38 


594  United  States  Constitutional  Law. 

Amendment,"  Field  declared,  "  the  power  of  the  States  to  op- 
press any  one  under  any  pretense  or  in  any  form  was  forever 
ended;  and  henceforth  all  persons  within  their  jurisdiction  could 
claim  equal  protection  under  the  laws.  And  by  equal  protection 
is  meant  equal  security  to  every  one  in  his  private  rights  —  in 
his  right  to  life,  to  liberty,  to  property,  and  to  the  pursuit  of  hap- 
piness. It  implies  not  only  that  the  means  which  the  laws  afford 
for  such  security  shall  be  accessible  to  him,  but  that  no  one  shall 
be  subject  to  any  burdens  or  charges  than  such  as  are  imposed 
upon  all  others  under  like  circumstances.  This  protection  attends 
every  one  everywhere,  whatever  be  his  position  in  society  or  his 
association  with  others,  either  for  profit,  improvement  or  pleasure. 
.  .  .  No  State  in  such  is  the  sovereign  command  of  the  whole 
people  of  the  United  States  —  no  State  shall  touch  the  life,  the 
liberty,  or  the  property  of  any  person,  however  humble  his  lot  or 
exalted  his  station,  without  due  process  of  law,  and  no  State, 
even  with  due  process  of  law,  shall  deny  to  any  one  within 
it3  jurisdiction  the  equal  protection  of  the  law.  Unequal 
taxation,  so  far  as  it  can  be  prevented  is  therefore,  with 
other  unequal  burdens,  prohibited  by  the  Amendment.  There 
undoubtedly  are,  and  always  will  be,  more  or  less  inequalities  in 
the  operation  of  all  general  legislation  arising  from  the  different 
conditions  of  persons  from  their  means,  business,  or  position  in 
life,  against  which  no  foresight  can  guard.  But  this  is  a  very 
different  thing,  both  in  purpose  and  effect,  from  a  carefully  de- 
vised scheme  to  produce  such  inequality;  or  a  scheme,  if  not  so 
devised,  necessarily  producing  that  result.  Absolute  equality 
may  not  be  attainable,  but  gross  and  designed  departures  from  it 
will  necessarily  bring  the  legislation  authorizing  it  within  the 
prohibition." 

As  has  been  already  noted,  the  determination  as  to  when  a  tax 
shall  be  levied  and  upon  what  persons  and  property,  and  by  what 
rule  it  is  to  be  assessed  and  by  what  means  collected  is  a  legislative 
function.  However,  in  levying  an  ad  valorem  tax,  the  legislature 
may  not  determine  the  assessment  value  of  particular  pieces  of 
property.    So  also  it  follows  that  while  the  legislature  may,  within 


Federal  Poweks  of  Taxation.  595 

its  discretion,  determine  freely  what  occupations,  or  classes  of 
property  or  persons  are  to  be  taxed,  it  may  not  select  out  from 
the  general  mass  of  property,  or  general  citizen  body,  particular 
pieces  of  property  or  particular  individuals  to  bear  the  burden  of 
the  tax.  When,  therefore,  a  tax  is  laid  upon  certain  classes  of 
property  or  of  persons,  there  must  be  some  reasonable  basis  for 
the  classifications  adopted.  By  this  is  meant  that  there  must  be 
some  substantial  reason  why  the  units,  whether  of  .property  or  of 
individuals,  should  be  treated  as  distinct  groups. 

In  Bell's  Gap  Railroad  Co.  v.  Pennsylvania29  was  involved  the 
validity  of  a  state  law  which  levied  a  certain  tax  on  all  moneyed 
securities  according  to  their  actual  value,  except  that  as  to  all 
bonds  and  other  securities  issued  by  corporations  their  nominal  or 
par  value  should  be  the  basis.  It  being  argued  that  this  violated 
the  requirement  of  the  Fourteenth  Amendment  as  to  the  equal 
protection  of  the  laws,  the  court  said :  "  But,  be  this  as  it  may, 
the  law  does  not  make  any  discrimination  in  this  regard  which  the 
State  is  not  competent  to  make.  All  corporate  securities  are  sub- 
ject to  the  same  regulation.  The  provision  in  the  Fourteenth 
Amendment,  that  no  State  shall  deny  to  any  person  within  its 
jurisdiction  the  equal  protection  of  the  laws,  was  not  intended  to 
prevent  a  State  from  adjusting  its  system  of  taxation  in  all  proper 
and  reasonable  ways.  It  may,  if  it  chooses,  exempt  certain 
classes  of  property  from  any  taxation  at  all,  such  as  churches, 
libraries  and  the  property  of  charitable  institutions.  It  may  im- 
pose different  specific  taxes  upon  different  trades  and  professions, 
and  may  vary  the  rates  of  excise  upon  various  products;  it  may 
tax  real  estate  and  personal  property  in  a  different  manner;  it 
may  tax  visible  property  only,  and  not  tax  securities  for  payment 
of  money;  it  may  allow  deductions  for  indebtedness,  or  not  allow 
them.  All  such  regulations,  and  those  of  like  character,  so  long 
as  they  proceed  within  reasonable  limits  and  general  usage,  are 
within  the  discretion  of  the  state  legislature,  or  the  people  of  the 
State  in  framing  their  Constitution.  But  clear  and  hostile  dis- 
criminations against  particular  persons  and  classes,  especially  such 

21  134  U.  S.  232;  10  Sup.  Ct.  Rep.  533;  33  L.  ed.  802. 


596  United  States  Constitutional  Law. 

as  are  of  an  unusual  character,  unknown  to  the  practice  of  our 
governments,  might  be  obnoxious  to  the  constitutional  prohibition. 
It  would,  however,  be  impracticable  and  unwise  to  attempt  to 
lay  down  any  general  rule  or  definition  on  the  subject,  that  would 
include  ;all  cases.  They  must  be  decided  as  they  arise.  We  think 
that  we  are  safe  in  saying  that  the  Fourteenth  Amendment  was 
not  intended  to  compel  the  States  to  adopt  an  iron  rule  of  taxa- 
tion. If  that  were  its  proper  construction,  it  would  not  only  su- 
persede all  those  constitutional  provisions  and  laws  of  some  of  the 
States,  whose  object  is  to  secure  equality  of  taxation,  and  which 
are  usually  accompanied  with  qualifications  deemed  material; 
but  it  would  render  nugatory  those  discriminations  which  the 
best  interests  of  society  require,  which  are  necessary  for  the  en- 
couragement and  useful  industries,  and  the  discouragement  of 
intemperance  and  vice,  and  which  every  State,  in  one  form  or  an- 
other, deems  it  expedient  to  adopt." 

In  American  Sugar  Refining  Co.  v.  Louisiana30  it  was  held  that 
the  equal  protection  of  the  laws  was  not  denied  by  a  license  tax 
imposed  upon  manufacturers  of  sugar,  but  exempting  from  its 
operation  those  who  refined  the  products  of  their  own  plantations. 
The  opinion  declares :  "  The  act  in  question  does  undoubtedly 
discriminate  in  favor  of  a  certain  class  of  refiners,  but  this  dis- 
crimination, if  founded  upon  a  reasonable  distinction  in  principle, 
is  valid.  Of  course,  if  such  discrimination  were  purely  arbitrary, 
oppressive,  or  capricious,  and  made  to  depend  on  differences  of 
color,  race,  nativity,  religious  opinions,  political  affiliation,  or 
other  consideration  having  no  possible  connection  with  the  duties 
of  citizens  as  taxpayers,  such  exemption  would  be  pure  favoritism, 
and  a  denial  of  the  equal  protection  of  the  laws  to  the  less  favored 
classes." 

§  271.  Uniformity  in  Taxation. 

Granting  the  right  of  the  legislature  to  classify  persons  and 
property  for  purposes  of  taxation,  the  requirements  of  due  process 
of  law  and  of  the  additional  provision  found  in  the  federal  Con- 

30  179  U.  S.  89;  21  Sup.  Ct.  Rep.  43;  45  L.  ed.  102. 


Federal  Powers  of  Taxation.  597. 

stitution  and  in  almost  all  if  not  in  all  of  the  stare  constitutions 
that  all  laws  shall  be  uniform,  make  it  necessary  that  the  assess- 
ment of  all  persons  and  property  within  the  class  or  district  se- 
lected for  taxation  shall  be  according  to  a  uniform  rule.  Cooley 
states  the  principle  as  follows:  ''As  to  all  taxation  apportioned 
upon  property,  there  must  be  taxing  districts  and  within  thesa 
districts  the  rule  of  absolute  uniformity  must  be  applicable.  A 
state  tax  must  be  apportioned  through  the  State,  a  county  tax 
through  the  county,  a  city  tax  through  the  city ;  while  in  cases  of 
local  improvements,  benefiting  in  a  speciaL  and  peculiar  manner 
some  portion  of  the  State  or  of  a  county  or  city,  it  is  competent 
to  arrange  a  special  taxing  district  within  which  the  expense  shall 
be  apportioned."  31  And  again :  "  The  rule  of  apportionment 
must  be  uniform  throughout  the  taxing  district,  applicable  to  all 
alike,  but  the  legislatures  have  no  power  to  arrange  taxing  dis- 
tricts arbitrarily,  and  without  reference  to  the  great  fundamental 
principles  of  taxation  that  the  burden  must  be  borne  by  those 
upon  whom  it  justly  rests.  The  Kentucky  and  Iowa  decisions 
lmld  that,  in  a  case  where  they  have  manifestly  and  unmistakably 
done  so,  the  courts  may  interfere  and  restrain  the  imposition  of 
municipal  burdens  on  property  which  does  not  properly  belong 
within  the  municipal  taxing  district  at  alL"  32 

All  that  the  rule  of  uniformity  requires  is  this,  that  within 
the  classes  or  districts  taxed  the  law  shall  operate  according  to  a 
uniform  rule.  Thus,  for  example,  it  has  been  generally  held  that  a 
city  levying  a  general  tax  may  not  discriminate  between  different 
wards  or  sections,  for  all  property  within  a  taxing  district  must 
bo  taxed  alike.33 

ooley,  Const.  Lim.,  7th  ed.,  711. 

32  Const.  Lim..  7th  ed.,  724.  The  cases  referred  to  are  Morford  v  linger, 
S  Iowa,  82:  City  of  Covington  v.  Southgate,  15  B.  Monr.  491;  Arbegust  v. 
Louisville,  2  Bush,  271;  Swift  v.  Newport,  7  Bush,  37. 

23  This  does  not  hold  true  where,  by  special  contract  made  at  the  time  a 
rural  district  is  incorporated  into  the  city,  special  treatment  with  reference 
to  taxation  has  been  promised.  The  exemption  of  certain  pieces  of  property 
from  taxation  where  this  exemption  has  been  for  some  public  purpose  or  in 
return  for  consideration  received,  does  not  violate  this  principle. 


598  United  States  Constitutional,  Law. 

§  272.  What  Constitutes  Uniformity  Throughout  the  United 
States? 

In  the  Head  Money  Cases,  speaking  with  reference  to  the  re- 
quirement of  the  federal  Constitution  that  all  duties,  imposts,  and 
excises  shall  he  uniform  throughout  the  United  States,  the  court 
say :  "  The  uniformity  here  prescribed  has  reference  to  the 
various  localities  in  which  the  tax  is  intended  to  operate.  '  It 
shall  be  uniform  throughout  the  United  .States.'  Is  the  tax  on 
tobacco  void,  because  in  many  of  the  States  no  tobacco  is 
raised,  or  manufactured  ?  Is  the  tax  on  distilled  spirits 
void,  because  a  few  States  pay  three-fourths  of  the  revenue 
arising  from  it?  The  tax  is  uniform  when  it  operates  with 
the  same  force  and  effect  in  every  place  where  the  subject 
is  to  be  found.  The  tax  in  this  case,  which,  as  far  as  it 
can  be  called  a  tax,  is  an  excise  duty  on  the  business  of  bring- 
ing passengers  from  foreign  countries  into  this  by  ocean  naviga- 
tion, is  uniform  and  operates  precisely  alike  in  every  port  of  the 
United  States  where  such  passengers  can  be  landed.  It  is  said 
that  the  statute  violates  the  rule  of  uniformity  and  the  provisions 
of  the  Constitution,  that  '  no  preference  shall  be  given  by  any 
regulation  of  commerce  or  revenue  to  the  ports  of  one  State  over 
those  of  another/  because  it  does  not  apply  to  passengers  arriving 
in  this  country  by  railroad  or  by  other  inland  mode  of  convey- 
ance. But  the  law  applies  to  all  ports  alike,  and  evidently  gives 
no  preference  to  one  over  another,  but  is  uniform  in  its  operation 
in  all  ports  of  the  United  States.  It  may  be  added  that  the  evil 
to  be  remedied  by  this  legislation  has  no  existence  on  our  inland 
borders,  and  immigration  in  that  quarter  needed  no  such  regula- 
tion. Perfect  uniformity  and  perfect  equality  of  taxation,  in  all 
the  aspects  in  which  the  human  mind  can  view  it,  is  a  baseless 
dream,  as  this  court  has  said  more  than  once.  (State  Railroad 
Tax  Cases,  92  U.  S.  575;  23  L.  ed.  663.)  Here  there  is  sub- 
stantial uniformity  within  the  meaning  and  purpose  of  the  Con- 
stitution." 

The  principles  of  uniformity  and  of  reasonable  classification 
for  purposes  of  taxation  have  been  especially  examined  by  the 
courts  with  reference  to  inheritance  tax  laws. 


Fedekal  Poweks  of  Taxation.  599 

§  273.  State  Inheritance  Taxes. 

So-called  inheritance  taxes,  that  is  to  say,  taxes  collected  from 
persons  receiving  jiroperty  by  inheritance,  are  levied  in  many  of 
the  civilized  States  of  the  world.  In  the  United  States  they  have 
several  times  been  imposed  by  federal  law,  and  at  present  (1910) 
they  are  to  be  found  in  about  thirty-five  States.  In  many 
cases  these  taxes  have  been  progressive,  the  rate  being  higher  for 
larger  than  for  smaller  bequests,  and  collateral  heirs  often  taxed 
more  heavily  than  direct  descendants.  In  most  cases  small  in- 
heritances have  been  wholly  exempted  from  the  operation  of  the 
tax,  as  have  been  also  bequests  and  inheritances  of  real  estate. 
In  some  cases  state  inheritance  tax  laws  have  been  held  questioned 
because  containing  some  special  obnoxious  provisions,  but  the 
ground  upon  which  they  have  usually  been  attacked  has  been  that 
they  have  violated  the  requirements  of  equality  and  uniformity, 
because  of  their  progressive  features  and  because  of  the  ex- 
emptions referred  to  above.  In  general,  however,  the  laws  have 
been  upheld.34 

3*  The  constitutionality  of  laws  exempting  small  estates  is  asserted  in  State 
v.  Clark,  30  Wash.  439;  State  v.  Alston,  94  Tenn.  674;  In  re  Wilmerding, 
117  Cal.  281;  Estate  of  Stanford,  126  Cal.  112;  State  v.  Hamlin,  86  Me.  495; 
Minot  v.  Winthrop,  162  Mass.  113;  Crocker  v.»  Shaw,  174  Mass.  266;  Gels- 
thorpe  v.  Furnell,  20  Mont.  299;  High  v.  Coyne,  9.3  Fed.  Rep.  450;  Morris' 
Estate,  50  S.  E.  Rep.  682;  Union  Trust  Co.  v.  Wayne,  125  Mich.  487;  Ferry 
v.  Campbell,  110  Iowa,  290;  Hickok's  Estate  (Vt.),  62  Atl.  Rep.  724; 
Frothingham  v.  Shaw,  175  Mass.  59;  Appeal  of  Nettleton,  56  Atl.  Rep.  565; 
Estate  of  Magnes,  32  Colo.  527 ;  Pullen  v.  Commissioners  of  Wake  Co.,  66 
N.  C.  361;  Black  v.  State,  113  Wis.  205. 

The  constitutionality  of  a  law  discriminating  between  lineal  and  collateral 
descendants  and  between  relatives  and  strangers  in  blood  has  been  sustained 
in  the  following  cases:  State  v.  Alston,  94  Tenn.  674;  State  v.  Henderson, 
160  Mo.  190;  State  v.  Clark,  30  Wash.  439;  Hagerty  v.  State,  55  Ohio,  613; 
Nunnemachcr  v.  State,  129  Wis.  190;  In  re  McPherson,  104  N.  Y.  306;  State 
v.  Hamlin,  86  Me.  495;  Minot  v.  Winthrop,  162  Mass.  113;  Billings  v.  State, 
189  111.  472;  State  v.  Dalrymple,  70  Md.  294;  Tyson  v.  State,  28  Md.  577; 
Eyre  v.  Jacob,  14  Gratt.  422;  Gelsthorpe  v.  Furnell,  20  Mont.  299;  Wallace  v. 
Myers,  38  Fed.  Rep.  184;  Union  Trust  Co.  v.  Wayne  Probate  Judge,  125  Mich. 
487;  Frothingham  v.  Shaw,  175  Mass.  59;  Appeal  of  Nottleton,  56  Atl.  Rep. 
565;  Estate  of  Magnes,  32  Colo.  527;  Pullen  v.  Commissioners  of  WTake  Co., 
66  N.  C.  361;  Estate  of  Campbell,  143  Cal.  623;  Thompson  v.  Kidder  (N\H.), 
65  Atl.  Rep.  392. 


600  United  States  Constitutional,  Law. 

In  many  cases  the  classifications  of  the  state  laws  have  been 
upheld  as  reasonable  in  themselves,  but  fundamentally  the  princi- 
ple upon  which  the  validity  of  the  laws  has  been  sustained  is  that 
an  inheritance  tax  is  not  a  tax  upon  the  property  inherited  but 
upon  the  right  to  inherit;  and  that,  inasmuch  as  this  is  a  right 
which  exists  only  by  statute,  it  is  one  that  may  be  regulated  at 
the  will  of  the  legislature  which  creates  it."5 

A  leading  case  in  the  federal  courts  as  to  the  constitutionality 
of  a  state  inheritance  tax  law  as  tested  by  the  requirements  of  the 
Fourteenth  Amendment,  is  that  of  Alagoun  v.  Illinois  Trust  and 
Savings  Bank.36 

In  this  case  the  doctrine  was  reaffirmed  that  an  inheritance  tax 
is  not  one  on  property  but  on  the  right  to  take  property  by  devise 
or  descent,  and  that  this,  being  a  right  of  legislative  creation,  the 
States  may  attach  conditions  thereunto.  Hence,  it  was  held,  that 
the  States  may,  in  taxing  this  privilege,  discriminate  between  rela- 
tives and  between  relatives  and  strangers  without  violating  state 
constitutional  provisions  requiring  uniformity  and  equality  of  tax- 
ation, or  the  provision  of  the  Fourteenth  Amendment  prohibiting 
the  denial  of  the  equal  protection  of  the  laws.  The  provision  of  the 
Fourteenth  Amendment,  the  court  say,  does  not  require  "  exact 
equality  of  taxation.  It  only  requires  that  the  law  imposing  it 
shall  operate  on  all  alike  under  the  same  circumstances." 

In  Billings  v.  Illinois37  the  court  say :  "  It  is  insisted  that  the 
classification  sustained  in  the  Alagoun  Case  '  related  solely  to  the 
graduated  feature  of  the  tax.'  In  the  case  at  bar,  it  is  said,  the 
question  is  whether  or  not  the  Illinois  legislature  can  discrim- 

The  constitutionality  of  a  law  laying  the  tax  according  to  a  progressively 
increasing  rate  has  been  upheld  in  the  following  cases:  Kocherspergci1  v. 
Drake,  167  111.  122;  Xunnemacher  v.  State,  129  Wis.  100;  State  ex  rel.  Foot 
v.  Bazille,  97  Minn.  11;  State  v.  Clark,  30  Wash.  430;  Estate  of  Magnes,  32 
Colo.  527;  Morris'  Estate,  138  X.  C.  259;  State  v.  Vinsonhaler  (Xebr.),  105 
X.  W.  Rep.  472. 

The  foregoing  references  are  from  a  pamphlet  on  inheritance  tax  laws  issued 
by  the  United  States  Government   (U.  S.  Govt.  Printing  Office,  1908). 

33  For  a  full  discussion  of  the  constitutionality  of  inheritance  tax  laws,  see 
Xunnemacher  v.  State,  129  Wis.  190,  decided  in  1906. 

3f  170  U.  S.  283;  18  Sup.  Ct.  Rep.  594;  42  L.  ed.  1037. 

s?  188  U.  S.  97;  23  Sup.  Ct.  Rep.  272;  47  L.  ed.  400. 


Fedeiull  Poweks  of  Taxation.  601 

inate  against  constituents  of  a  certain  class,  and  apply  different 
rules  for  the  taxation  of  its  members.  Life  tenants  constitute 
but  a  single  class,  and  the  incidents  of  such  an  estate,  the  source 
thereof,  the  extent,  the  dominion  over  and  the  quality  of  interest 
in  the  tenant,  is  the  same  irrespective  of  the  ultimate  vesting  of 
the  remainder.  The  tax  is  not  upon  the  property,  but  is  upon  the 
person  succeeding  to  the  property.  Undoubtedly,  life  tenants,  re- 
garded simply  as  persons,  may  be  in  legal  contemplation  the  same ; 
estates  for  life,  regarded  simply  as  estates  with  their  attributes 
also  in  legal  contemplation,  may  be  said  to  be  the  same,  but  that 
is  not  all  to  be  considered,  nor  is  it  determinative.  "We  must  re- 
gard the  power  of  the  state  over  testate  and  intestate  dispositions 
of  property,  its  power  to  create  and  limit  estates,  and,  as  resulting, 
its  power  to  impose  conditions  upon  their  transfer  or  devolution. 
It  is  upon  this  power  that  inheritance  tax  laws  are  based,  and  we 
said,  in  the  Magoun  Case,  that  the  power  could  be  exercised  by 
distinguishing  between  the  lineal  and  collateral  relatives  of  a 
testator.  There  the  amount  of  tax  depended  upon  him  who  im- 
mediately received;  here  the  existence  of  the  tax  depends  upon 
him  who  ultimately  receives.  That  can  make  no  difference  with 
the  power  of  the  State.  Xo  discrimination  being  exercised  in 
the  creation  of  the  class,  equality  is  observed.  'Crossing  the  lines 
of  the  classes  created  by  the  statute,  discriminations  may  be  ex- 
hibited, but  within  the  classes  there  is  equality."  38 

3s  See  also  Campbell  v.  California,  200  U.  S.  87 ;  26  Sup.  Ct.  Rep.  182 ;  50 
L.  ed.  382. 

Mr.  Judson  in  his  valuable  treatise,  summing  up  the  question  of  classifiea- 
tion  for  taxing  purposes,  says:  "Classification  for  taxation  is  not  necessarily 
based  upon  any  essential  difference  in  the  nature  or  condition  of  the  various 
subjects.  It  may  be  based  as  well  upon  the  want  of  adaptability  to  the  same 
methods  of  taxation,  or  upon  the  impracticability  of  applying  to  the  varieus 
subjects  the  same  methods  so  as  to  produce  uniform  results,  or  it  may  be 
based  upon  just  and  well  grounded  considerations  of  public  policy."  Mr. 
Judson  adds,  however,  that  "while  classification  may  thus  be  based  on  dilfer- 
.  ences  in  the  nature  or  condition  of  the  subjects  of  taxation,  or  their  want  of 
]  adaptability  to  the  same  methods  of  taxation,  it  must  rest  on  some  other 
reason  than  that  of  mere  ownership."    On  Taxation,  §§  454,  455. 


602  United  States  Constitutional  Law. 

§  274.  Federal  Inheritance  Taxes. 

Upon  several  occasions  inheritance  taxes  have  been  resorted  to 
for  revenue  by  the  Federal  Government  By  the  stamp  act  of 
July  6,  1797,  a  duty  was  levied  on  receipts  for  legacies  and 
shares  of  personal  estate.  So  also  a  legacy  tax  on  the  devolution 
of  personal  property  and  stamp  taxes  on  probates  of  wills  and 
letters  of  administration  were  imposed  by  the  war  revenue  acts  of 
July  1,  1862,  and  June  30,  1864,  the  latter  act  providing  for  a 
succession  tax  on  real  estate.  In  the  income  tax  provisions  of 
the  act  of  August  27,  1894,  incomes  were  defined  to  include 
"  money  and  the  value  of  all  personal  property  acquired  by  gift 
or  inheritance."  39  Again  in  the  war  revenue  act  of  June,  1898, 
taxes  were  imposed  upon  legacies  and  distributive  shares  of  per- 
sonal property. 

The  constitutionality  of  the  inheritance  tax  provisions  of  this 
last  law  of  1898  was  upheld  in  Knowlton  v.  Moore.40  In  this 
case  it  was  argued  that  the  tax  was  void,  first,  because  it  was  a 
direct  tax  and  not  apportioned  among  the  States  according  to 
their  respective  populations;  second,  because  it  was  not,  in  its 
operation,  "  uniform  throughout  the  United  States ;"  and  third, 
that,  regarded  as  a  succession  tax,  it  attempted  the  federal  regula- 
tion of  a  matter  placed  within  the  exclusive  control  of  the  States. 

The  reasoning  of  the  court  upon  the  first  of  these  points  is  con- 
sidered in  a  later  section  of  this  chapter.41  As  to  the  question 
of  uniformity  the  contention  was  that  the  requirement  was  vio- 
lated because  the  statute  exempted  legacies  and  distributive  shares 
in  personal  property  below  $10,000,  because  it  classified  the  rate 
of  tax  according  to  the  relationship  of  the  taker  to  the  deceased, 
and  because  it  provided  for  a  rate  progressing  according  to  the 
amount  of  the  legacy  or  share.  To  this  contention  the  court  reply : 
"  Considering  the  text,  it  is  apparent  that  if  the  word  '  uniform  ' 
means    '  equal    and    uniform '    in    the    sense    now    asserted    by 

8»  In  Pollock  v.  Farmers'  Loan  and  Trust  Co.  ( 158  U.  S.  601 ;  15  Sup.  Ct. 
Hep.  912;  39  L.  ed.  1108),  the  court  held  the  income  tax  features  of  this  law 
void.     See  Section  279. 

«  178  U.  S.  41;  20  Sup.  Ct.  Rep.  747;  44  L.  ed.  969. 

«  Section  281. 


Federal  Powers  of  Taxation.  603 

the  opponents  of  the  tax,  the  words  '  throughout  the  United 
States/  are  deprived  of  all  real  significance,  and  sustaining  the 
contention  must  hence  lead  to  a  disregard  of  the  elementary  canon 
of  construction  which  requires  that  effect  be  given  to  each  word 
of  the  Constitution.  Taking  a  wider  view,  it  is  to  be  remembered 
that  the  power  to  tax  contained  in  Section  VIII  of  Article  I  is  to 
lay  and  collect  '  taxes,  duties,  imposts,  and  excises ;  .  .  . 
but  all  duties,  imposts  and  excises  shall  be  uniform  throughout 
the  United  States.' '  Thus,  the  qualification  of  uniformity  is  inr 
posed,  not  upon  the  taxes  which  the  Constitution  authorizes,  but 
only  on  duties,  imposts,  and  excises.  The  conclusion  that  inherent 
equality  and  uniformity  is  contemplated  involves,  therefore,  the 
proposition  that  the  rule  of  intrinsic  uniformity  is  applied  by  the 
Constitution  to  taxation  by  means  of  duties,  imposts,  and  excises, 
and  it  is  not  applicable  to  any  other  form  of  taxes.  It  cannot  be 
doubted  that  in  levying  direct  taxes,  after  apportioning  the 
amount  among  the  several  States,  as  provided  in  Clause  4  of  Sec- 
tion IX  of  Article  I  of  the  Constitution,  Congress  has  the  power  to 
choose  the  objects  of  direct  taxation,  and  to  levy  the  quota  as  ap- 
portioned directly  upon  the  objects  so  selected.  Even  then,  if  the 
view  of  inherent  uniformity  be  the  true  one,  none  of  the  taxes  so 
levied  would  be  subjected  to  such  rule,  as  the  requirements  only 
relate  to  duties,  imposts,  and  excises.  But  the  classes  of  taxes 
termed  duties,  imposts,  and  excises,  to  which  the  rule  of  uni- 
formity applies,  are  those  to  which  the  principle  of  equality  and 
uniformity  in  the  sense  claimed  is,  in  the  nature  of  things,  the 
least  applicable  and  least  susceptible  of  being  enforced.  Excises 
usually  look  to  a  particular  subject,  and  levy  burdens  with  refer- 
ence to  the  act  of  manufacturing  them,  selling  them,  etc.  They 
are  or  may  be  as  varied  in  form  as  are  the  acts  or  dealings  with 
which  the  taxes  are  concerned.  Impost  duties  take  every  conceiv- 
able form,  as  may  by  the  legislative  authority  be  deemed  best  for 
the  general  welfare.  They  have  been  at  all  times  often  specific. 
They  have  sometimes  been  discriminatory,  particularly  when 
deemed  necessary  by  reason  of  the  tariff  legislation  of  other 
countries.     The  claim  of  intrinsic  uniformity,  therefore,  imputes 


604  United  States  Constitutional  Law. 

to  the  framers  a  restriction  as  to  certain  forms  of  taxes,  where 
the  restraint  was  least  appropriate  and  the  omission  where  it  was 
most  needed.  This  discord,  which  the  construction,  if  well 
founded,  would  create,  suggests  at  once  the  unsoundness  of  the 
proposition,  and  gives  rise  to  the  inference  that  the  contrary  view 
by  which  the  unity  of  the  provisions  of  the  Constitution  is  main- 
tained, must  be  the  correct  one.  In  fact,  it  is  apparent  that  if 
imposts,  duties,  and  excises  are  controlled  by  the  rule  of  intrinsic 
uniformity,  the  methods  usually  employed  at  the  time  of  the 
adoption  of  the  Constitution  in  all  countries  in  the  levy  of  such 
taxes  would  have  to  be  abandoned  in  this  country,  and,  therefore, 
whilst  nominally  having  the*  authority  to  impose  taxes  of  this 
character,  the  power  to  do  so  would  be  virtually  denied  to  Con- 
gress. Xow,  that  the  requirement  that  direct  taxes  should  be  ap- 
portioned among  the  several  States  contemplated  the  protection  of 
the  States,  to  prevent  their  being  called  upon  to  contribute  more 
than  was  deemed  their  due  share  of  the  burden,  is  clear.  Giving 
to  the  term  uniformity  as  applied  to  duties,  imposts,  and  excises 
a  geographical  significance,  likewise  causes  that  provision  to  look 
to  the  forbidding  of  discrimination  as  between  the  States,  by  the 
levying  of  duties,  imposts,  or  excises  upon  a  particular  subject  in 
one  State  and  a  different  duty,  impost,  or  excise  on  the  same  sub- 
ject in  another;  and  therefore,  as  far  as  may  be,  is  a  restriction 
in  the  same  direction  and  in  harmony  with  the  requirement  of 
apportionment  of  direct  taxes.  .  .  .  It  is  yet  further  asserted 
that  the  tax  does  not  fulfil  the  requirements  of  geographical  uni- 
formity, for  the  following  reasons :  As  the  primary  rate  of  taxa- 
tion depends  upon  the  degree  of  relationship  or  want  of  relation- 
ship to  a  deceased  person,  it  is  argued  that  it  cannot  operate  with 
geographical  uniformity,  inasmuch  as  testamentary  and  intestacy 
laws  may  differ  in  every  State.  It  is  certain  that  the  same  degree 
of  relationship  or  want  of  relationship  to  the  deceased,  wherever 
existing  is  levied  on  at  the  same  rate  throughout  the  United 
States.  The  tax  is  hence  uniform  throughout  the  United  States, 
de-pite  the  fact  that  different  conditions  among  the  States  may 
obtain  as  to  the  objects  upon  which  the  tax  is  levied.     The  propo- 


Federal  Powees  uf  Taxation.  605 

sition  in  substance  assumes  that  the  objects  taxed  by  duties,  im- 
posts, and  excises  must  be  found  in  uniform  quantities  and  condi- 
tions in  the  respective  States,  otherwise  the  tax  levied  on  them 
will  not  be  uniform  throughout  the  United  States.  But  what  the 
Constitution  commands  is  the  imposition  of  a  tax  by  the  rule  of 
geographical  uniformity,  not  that  in  order  to  levy  such  a  tax  ob- 
jects must  be  selected  which  exist  uniformly  in  the  several  States. 
Indeed,  the  contention  was  substantially  disposed  of  in  License 
Tax  Cases.42 

As  to  the  contention  that,  viewing  the  tax  as  one  on  succession, 
the  law  was  in  regulation  of  a  matter  within  the  exclusive  control 
of  the  States,  the  court,  after  reaffirming  the  principle  that  the 
tax  is  one  on  the  right  of  succession,  say :  "  Can  the  Congress  of 
the  United  States  levy  a  tax  of  that  character  ?  The  proposition 
that  it  cannot  rests  upon  the  assumption  that,  since  the  transmis- 
sion of  property  by  death  is  exclusively  subject  to  the  regu- 
lating authority  of  the  several  States,  therefore  the  levy  by  Con- 
gress of  a  tax  on  inheritance  or  legacies,  in  any  form,  is  beyond 
the  power  of  Congress,  and  is  an  interference  by  the  Xational  Gov- 
ernment with  a  matter  which  falls  alone  within  the  reach  of  state 
legislation.  .  .  .  The  fallacy  which  underlies  the  proposition 
contended  for  is  the  assumption  that  the  tax  on  the  transmission  or 
receipt  of  property  occasioned  by  death  is  imposed  on  the  exclusive 
power  of  the  State  to  regulate  the  devolution  of  property  upon 
death.  The  thing  forming  the  universal  subject  of  taxation  upon 
which  inheritance  and  legacy  taxes  rest  is  the  transmission  or  re- 
ceipt, and  not  the  right  existing  to  regulate.  4  In  legal  effect,  then, 
the  proposition  upon  which  the  argument  rests  is  that  wherever  a 
right  is  subject  to  exclusive  regulation,  by  either  the  Government 
of  the  United  States,  on  the  one  hand,  or  the  several  States,  on 
the  other,  the  exercise  of  such  rights  as  regulated  can  alone  be 
taxed  by  the  government  having  the  mission  to  regulate.  But 
when  it  is  accurately  stated,  the  proposition  denies  the  authority 
of  the  States  to  tax  objects  which  are  confessedly  within  the  reach 
of  their  taxing  power,  and  also  excludes  the  National  Government 

435  Wall.  402;  18  L.  ed.  497. 


606  United  States  Constitutional  Law. 

from  almost  every  subject  of  direct  and  many  acknowledged  ob- 
jects of  indirect  taxation.  ...  It  cannot  be  doubted  that 
the  argument  when  reduced  to  its  essence  demonstrates  its  own 
unsoundness,  since  it  leads  to  the  necessary  conclusion  that  both 
the  national  and  state  governments  are  divested  of  those  powers 
of  taxation  which  from  the  foundation  of  the  Government  ad- 
mittedly have  belonged  to  them.  Certainly,  a  tax  placed  upon  an 
inheritance  or  legacy  diminishes,  to  the  extent  of  the  tax,  the 
value  of  the  right  to  inherit  or  receive,  but  this  is  a  burden  cast 
upon  the  recipient  and  not  upon  the  power  of  the  State  to 
regulate.  .  .  .  •  Under  our  constitutional  system  both  the 
national  and  state  governments,  moving  in  their  respective  orbits, 
have  a  common  authority  to  tax  many  and  diverse  objects,  but 
this  does  not  cause  the  exercise  of  its  lawful  attributes  by  one  to 
be  a  curtailment  of  the  powers  of  government  of  the  other,  for  if 
it  did  there  would  practically  be  an  end  of  the  dual  system  of 
government  which  the  Constitution  established." 

In  Snyder  v.  Bettman43  the  court  say  that  the  case  of  Knowlton 
v.  Moore  "  must  be  regarded  as  definitely  establishing  the  doctrine 
that  the^power  to  tax  inheritances  does  not  arise  solely  from  the 
power  to  regulate  the  descent  of  property,  but  from  the  general 
authority  to  impose  taxes  upon  all  property  within  the  jurisdic- 
tion of  the  taxing  power.  It  has  usually  happened  that  the  power 
has  been  exercised  by  the  same  government  which  regulates  the 
succession  to  the  property  taxed ;  but  this  power  is  not  destroyed 
by  the  dual  character  of  our  government,  or  by  the  fact  that  under 
our  Constitution  the  devolution  of  property  is  determined  by  the 
laws  of  the  several  States." 

In  an  earlier  chapter44  it  has  been  pointed  out  that  a  federal 
inheritance  tax  levied  upon  bequests  to  a  State  or  a  municipal 
corporation  thereof,45  or  a  state  tax  on  legacies  consisting  of 
United  States  bonds40  is  not  unconstitutional. 

«  190  U.  S.  249;  23  Sup.  Ct.  Rep.  803;  47  L.  ed.  1035. 

44  Chapter  V. 

45  Snyder  v.  Bettman,  190  U.  S.  249 ;  23  Sup.  Ct.  Rep.  803 ;  47  L.  ed.  1035. 

46  Plumber  v.  Coler,  178  U.  S.  115;  20  Sup.  Ct.  Rep.  829;  44  L.  ed.  998. 


Federal  Powers  of  Taxation.  607 

In  Murdock  v.  Ward47  it  is  held  that  a  federal  inheritance  tax 
may  be  imposed  on  legacies  or  shares  consisting  of  United  States 
bonds,  even  when  these  bonds  have  been  issued  under  a  law  ex- 
pressly exempting  them  from  taxation  in  any  form,  state  or 
federal,  direct  or  indirect.48 

§  275.  Protective  Tariffs. 

The  constitutionality  of  a  protective  tariff,  that  is,  a  system  of 
customs  duties  levied  on  foreign  imports  so  arranged  as  to  fur- 
nish incidental  protection  to  home  industries,  though  questioned 
in  earlier  years,  has  now  passed  beyond  the  range  of  controversy. 
Such  laws  being  on  their  face  revenue  measures,  may  not  be  ques- 
tioned because  their  effect,  and  indeed  the  intent  of  the  legis- 
lature, is  primarily  to  supply  protection  rather  than  revenue.  The 
doctrine  of  the  court  in  McCray  v.  United  'States49  is  conclusive 
as  to  this.  But  even  if  this  were  not  so,  a  tariff  avowedly  levied 
primarily  and  solely  for  protection  is  constitutionally  justified 
under  the  grant  of  authority  to  Congress  u  to  regulate  commerce 
with  foreign  nations."  50 


i&j 


§  276.  Bounties.51 

The  constitutionality  of  bounties  has  never  been  squarely  passed 
upon  by  the  Supreme  Court.     Their  validity  was  questioned  in 

"178  U.  S.  130;  20  Sup.  Ct.  Rep.  775;  44  L.  ed.  1009. 

4SThe  court  say:  "Whether  the  United  States,  in  the  exercise  of  the 
power  of  taxation,  can  be  estopped  by  a  contract  that  such  power  shall  not  be 
exercised,  we  need  not  consider,  because  the  contract  in  this  case  does  not,  as 
we  view  it,  mean  that  a  State  may  not,  or  the  United  States  may  not,  tax 
inheritances  and  legacies,  regardless  of  the  character  of  the  property  of  which 
they  are  composed.  That  some  of  the  holders  of  United  States  bonds  may 
not  have  paid  franchise  taxes  to  the  States,  and  others  may  have  paid  state 
or  federal  inheritance  and  legacy  taxes,  has  nothing  to  do  with  the  contract 
between  the  United  States  and  the  bondholders.  The  United  States  will  have 
complied  with  their  contract  when  they  pay  to  the  original  holders  of  their 
bonds,  or  to  their  assigns,  the  interest,  when  due,  in  full,  and  the  principal, 
when  due,  in  full." 

«  195  U.  S.  27;  24  Sup.  Ct.  Rep.  769;  49  L.  ed.  78. 

B0  For  a  summary  of  the  arguments  pro  and  contra  as  to  the  constitu- 
tionality of  protective  tariffs,  ?ee  passim  Stanwood,  Tariff  Controversies  in 
the,  United  States  in  the  Nineteenth  Century. 

5i  For  the  definition  of  bounties  see  Downs  v.  United  States,  187  U.  S. 
496;  23  Sup.  Ct.  Rep.  222;  47  L.  ed.  275. 


COS  United  States  Constitutional  Law. 

Field  v.  Clark52  and  United  States  v.  Bealty  Co.,53  but  in  neither 
case  did  the  court  find  itself  obliged  to  decide  the  point.  The 
ground  upon  which  the  constitutionality  of  bounties  has  been  con- 
tested has  been  that  their  payment  amounts  to  an  appropriation 
of  public  moneys  primarily  for  a  private  purpose.  The  courts 
have  often  held  that  an  expenditure  in  the  public  interest  is  not 
invalidated  by  the  fact  that  incidentally  private  interests  are  ad- 
vanced thereby;  but  in  general  they  have  been  held  that  an  ap- 
propriation primarily  and  directly  for  the  furtherance  of  private 
interests  is  not  valfdated  by  the  fact  that  incidentally  public  in- 
terests are  in  a  measure  promoted.54 

§  277.  Export  Duties. 

Among  the  express  limitations  upon  the  powers  of  Congress, 
enumerated  by  the  Constitution  is  that  which  provides  that  *  no 
tax  or  duty  shall  be  laid  on  articles  exported  from  any  State."  53 
In  another  clause  substantially  the  same  prohibition  is  laid  upon 
the  States,  it  being  declared  that  "  no  State  shall,  without  the 
consent  of  Congress,  lay  any  imposts  or  duties  on  imports  or  ' 
exports."  56 

The  term  "exports"  has  been  judicially  limited  to  goods  ex- 
ported to  foreign  countries.     In  the  earlier  cases  of  Brown  v. 
Maryland57  and  xllmy  v.   California58  it  was  taken  for  granted" 
by  the  court  that  the  term  applied  also  to  goods  carried  from  one' 
State  to  another  State  of  the  Union,  but  in  Woodruff  v.  Parham59[ 

52  143   U.   S.   649;    12  Sup.   Ct.  Rep.  495;   36  L.  ed.  294. 

62  163  TJ.  S.  427;  16  Sup.  Ct.  Rep.  1120;  41  L.  ed.  215. 
6*See  Lowell  v.  Boston,  111  Mass.  454;   and  Loan  Association  v.  Topeka, 

20  Wall.  655;  22  L.  ed.  455.  Cf.  Harvard  Laic  Review,  V,  320,  article  by 
C.  F.  Chamberlayne  entitled  "  The  Sugar  Bounties." 

55  Art.  I,  Sec.  IX,  CI.  5. 

66 "  Except  what  may  be  absolutely  necessary  for  executing  its  inspection 
laws;  and  the  net  produce  of  all  duties  and  imposts,  laid  by  any  State  on 
imports  or  exports,  shall  be  for  the  use  of  the  treasury  of  the  United  States; 
and  all  such  laws  shall  be  subject  to  the  revision  and  control  of  the  Congress  " 
(Art.  I,  Sec.  X,  CI.  2).  The  state  taxation  of  exports  is  considered  in 
Chapter  XLII. 

57  12  Wh.  419;  6  L.  ed.  678. 

63  24  How.  169;   16  L.  ed.  644. 
69  8  Wall.  123 ;  19  L.  ed.  3S2. 


Federal  Powers  of  Taxatiox.  609 

Ifhese  dicta  were  overruled  and  the  position  taken  which  has  not 
since  been  disturbed,  that  the  prohibition  has  reference  only  to 
1 1  oxportations  to  countries  foreign  to  the  United  States.  In  this 
case,  Justice  Miller,  after  referring  to  the  general  power  given 
to  Congress  to  levy  and  collect  taxes,  duties,  and  imposts,  says: 
il  Is  the  word  '  impost '  here  used,  intended  to  confer  upon  Con- 
gress a  distinct  power  to  levy  a  tax  upon  all  goods  or  merchandise 
carried  from  one  State  to  another  ?  Or  is  the  power  limited  to 
duties  on  foreign  imports  ?  If  the  former  be  intended,  then  the 
power  conferred  is  curiously  rendered  nugatory  by  the  subsequent 
clause  of  section  IX,  which  declares  that  no  tax  shall  be  laid 
on  articles  exported  from  any  State,  for  no  article  can  be  imported 
from  one  State  into  another  which  is  not  at  the  same  time  exported 
from  the  former.  But  if  we  give  to  the  word  '  imposts '  as  used  in 
the  first-mentioned  clause  the  definition  of  Chief  Justice  ^Marshall, 
and  to  the  word  '  export '  the  corresponding  idea  of  something  car- 
ried out  of  the  United  States,  we  have,  in  the  power  to  lay  duties 
on  imports  from  abroad  and  the  prohibition  to  lay  such  duties  on 
exports  to  other  countries,  the  power  and  its  limitations  concern- 
ing imposts.  It  is  not  too  much  to  say  that,  so  far  as  our  research 
has  extended,  neither  the  word  '  export,'  '  import,'  or  '  impost ' 
is  to  be  found  in  the  discussion  on  this  subject,  as  they  have  come 
down  to  us  from  that  time,  in  reference  to  any  other  than  foreign 
commerce,  without  some  special  form  of  words  to  show  that 
foreign  commerce  is  not  meant  .  .  .  \Vhether  we  look,  then, 
to  the  terms  of  the  clause  of  the  Constitution  in  question,  or  to  its 
relation  to  the*  other  parts  of  that  instrument,  or  to  the  history  of 
its  formation  and  adoption,  or  to  the  comments  of  the  eminent 
men  who  took  part  in  those  transactions,  we  are  forced  to  the  con- 
clusion that  no  intention  existed  to  prohibit  by  this  clause  [that 
no  State  shall,  without  the  consent  of  Congress,  levy  any  impost 
or  duty  upon  any  export  or  import]  the  right  of  one  State  to  tax 
articles  brought  into  it  from  another." 

In  Dooley  v.  United  States,60  one  of  the  "  Insular  Cases,"  it 
was  argued  that  the  Foraker  Act  of  April  12,  1000,  was  uncon- 

w  183  U.  S.  151 ;  22  Sup.  Ct.  Rep.  62;  43  L.  ed.  128. 
39 


610  United  States  Constitutional,  Law. 

stitutional  in  so  far  as  it  provided  for  the  payment  of  duties  upon 
merchandise  imported  into  Porto  Rico  from  the  United  States. 
The  court,  however,  held  that  Porto  Eico,  after  cession  to  the 
United  States,  even  though  not  "  incorporated  "  into  the  United 
Spates  was  not  foreign  territory,  and,  therefore,  that,  under  the 
definition  laid  down  in  Woodruff  v.  Parham,  the  tax  in  question 
was  not  a  tax  on  goods  exported  from  the  United  States.  The 
court,  moreover,  go  on  to  show  from  the  circumstances  of  the  case 
that  the  tax  was  to  be  construed  rather  as  one  on  goods  imported 
into  Porto  Rico,  than  upon  goods  exported  from  the  State  of  New 
York.  The  court  in  its  opinion,  however,  are  careful  to  add: 
"  It  is  not  intended  by  this  opinion  to  intimate  that  Congress  may 
lay  an  export  tax  upon  merchandise  carried  from  one  State  to 
another.  While  this  does  not  seem  to  be  forbidden  by  the  express 
words  of  the  Constitution,  it  would  be  extremely  difficult,  if  not 
impossible,  to  lay  such  a  tax  without  a  violation  of  the  first  para- 
graph of  Article  I,  Section  VIII,  that c  all  duties,  imposts,  and  ex- 
cises shall  be  uniform  throughout  the  United  States.'  There  is  a 
wide  difference  between  the  full  and  paramount  power  of  Congress 
in  legislating  for  a  territory  in  the  condition  of  Porto  Rico  and  its 
power  with  respect  to  the  States,  which  is  merely  incidental  to  its 
right  to  regulate  interstate  commerce.  The  question,  however,  is 
not  involved  in  this  case,  and  we  do  not  desire  to  express  an 
opinion  upon  it."  61 

61  In  a  dissenting  opinion,  concurred  in  by  four  justices,  it  was  argued  that, 
"The  fact  that  the  net  proceeds  of  the  duties  are  appropriated  by  the  act  for 
use  in  Porto  Rico  does  not  affect  their  character  any  more  than  if  so  appro- 
priated by  another  and  separate  act.  The  taxation  reaches  the  people  of  the 
"States  directly,  and  is  national,  and  not  local,  even  though  the  revenue 
derived  therefrom  is  devoted  to  local  purposes.  .  .  .  The  prohibition 
that  *  no  tax  or  duty  shall  be  laid  on  articles  exported  from  any  State  * 
negatives  the  existence  of  any  power  in  Congress  to  lay  taxes  or  duties  in 
any  form  on  articles  exported  from  a  State,  irrespective  of  their  destination, 
and,  this  being  so,  the  act  in  imposing  the  duties  in  question  is  invalid, 
whether  Porto  Rico  after  its  passage  was  a  foreign  or  reputed  foreign  ter- 
ritory, a  domestic  territory  or  a  territory  subject  to  be  dealt  with  at  the 
will  of  Congress  regardless  of  constitutional  limitations.  .  .  .  The  pro- 
hibition on  Congress  is  explicit,  and  noticeably  different  from  the  prohibi- 
tion on  the  States.     The  State  is  forbidden  to  lay  'any  imposts  or  duties;' 


Federal  Powers  of  Taxation.  611 

To  come  within  the  definition  of  an  export  tax,  it  has  been  held 
that  the  tax  must  be  one  levied  upon  the  right  to  export,  or  upon 
goods  because  of  the  fact  that  they  are  being  exported  or  are 
intended  to  be  exported.  The  fact  that  certain  goods  are  intended 
for  export  does  not,  however,  exempt  them  from  an  ordinary 
property  tax,  for,  as  said,  the  tax  is  one  on  exports  only  when  its 
incidence  or  amount  is  determined  by  the  fact  that  the  goods  are 
intended  for  export.  This  is  the  doctrine  laid  down  in  Coe  v. 
Errol62  with  reference  to  taxation  by  the  States  and  in  Turpin  v. 
Burgess63  with  reference  to  federal  taxation.64 

Congress  is  forbidden  to  lay  '  any  tax  or  duty.'  The  State  ia  forbidden 
from  laying  imposts  or  duties  '  on  imports  or  exports,'  that  is,  articles 
coming  into  or  going  out  of  the  United  States.  Congress  is  forbidden  to 
tax  articles  exported  from  any  State.'  .  .  .  Congress  may  lay  local 
taxes  in  the  territories,  affecting  persons  and  property  therein,  or  authorize 
territorial  legislatures  to  do  so,  but  it  cannot  lay  tariff  duties  on  articles  ex- 
ported, from  one  State  to  another,  or  from  any  State  to  the  territories,  or 
from  any  State  to  foreign  countries,  or  grant  a  power  in  that  regard. 
which  it  does  not  possess.  But  the  decision  now  made  recognizes  such  pow- 
ers in  Congress  as  will  enable  it,  under  the  guise  of  taxation,  to  exclude 
the  products  of  Porto  Rico;  and  this,  notwithstanding  it  was  held  in  De 
Lima  v.  Bidwell  (182  U.  S.  1;  21  Sup.  Ct.  Rep.  743;  45  L.  ed.  1041),  that 
Porto  Rico  after  the  ratification  of  the  treaty  with  Spain  ceased  to  be  foreign 
and  became  domestic  territory." 

62  116  U.  S.  517;  6  Sup.  Ct.  Rep.  475;  29  L.  ed.  715. 

63  117  U.  S.  504;  6  Sup.  Ct.  Rep.  835;  29  L.  ed.  988. 

6*  In  the  latter  case  the  court  say:  "There  is  another  view  of  this  subject, 
however,  independent  of  the  considerations  which  governed  our  former  decision, 
which  is  equally  decisive  of  this  case.  We  have  lately  decided  in  Coe  v.  Errol 
that  goods  intended  for  exportation  to  another  State  are  liable  to  taxation  as 
part  of  the  general  mass  of  property  of  the  State  of  their  origin  until  actually 
started  in  course  of  transportation  to  the  State  of  their  destination,  or 
delivered  to  a  common  carrier  for  that  purpose,  provided  they  are  taxed  in 
the  usual  way  in  which  such  property  is  taxed,  and  not  taxed  by  reason  or 
because  of  such  exportation,  or  intended  exportation,  and  that  the  carrying  of 
them  to  and  depositing  them  at  a  depot  for  the  purpose  of  transportation  is 
no  part  of  that  transportation.  Now  the  constitutional  provision  against 
taxing  exports  is  substantially  the  same  when  directed  to  the  United  States 
as  when  directed  to  a  State.  In  the  one  case  the  words  are,  *  No  tax  or  duty 
shall  be  laid  on  articles  exported  from  any  State.'  Art.  I,  §  9,  par.  2.  In  the 
other  they  are:  'No  State  shall,  without  the  consent  of  Congress,  lay  any 
imposts  or  duties  on  imports  or  exports.'  Art.  I,  §  10,  par.  2.  The  prohibi- 
tion in  both  cases  has  reference  to  the  imposition  of  duties  on  goods  by  reason 
or  because  of  their  exportation,  or   intended  exportation,  or  while  they  are 


012  United  States  Constitutional  Law. 

In  Pace  v.  Burgess65  was  questioned  the  validity  of  a  federal 
law  requiring  stamps  to  be  affixed  to  packages  of  manufactured 
tobacco  intended  for  exportation.  The  court,  however,  held  the 
requirement  to  be  a  proper  one  to  prevent  fraud  and  not  to  amount 
to  a  tax  on  exports.  •  "  The  stamp  was  intended,"  the  court  say. 
"  for  no  other  purpose  than  to  separate  and  identify  the  tobacco 
which  the  manufacturer  desired  to  export,  and  thereby,  instead 
of  taxing  it,  to  relieve  it  from  the  taxation  to  which  other  toHcco 
was  subjected.  It  was  a  means  devised  to  prevent  fraud,  and 
to  secure  the  faithful  carrying  out  of  the  declared  intent  with 
regard  to  the  tobacco  so  marked.  The  payment  of  twenty-five 
cents  or  of  ten  cents  for  the  stamp  used  was  no  more  a  tax  on  the 
export  than  was  the  fee  for  clearing  the  vessel  in  which  it  was 
transported,  or  for  making  out  and  certifying  the  manifest  of  the 
cargo.  It  bore  no  proportion  whatever  to  the  quantity  or  value 
of  the  package  on  which  it  was  affixed." 

In  Fairbanks  v.  United  States,60  however,  a  stamp  tax  imposed 
on  foreign  bills  of  lading  by.  the  act  of  1898  was  held  to  be,  in 
substance  and  effect,  a  tax  on  the  articles  included  in  the  bills  of 
lading,  and,  therefore,  a  tax  on  exports,  and  as  such  unconstitu- 
tional.    The  law  had  provided  for  a  stamp  tax  of  one  cent  on 

being  exported,  within  the  meaning  of  the  Constitution.  But  a  general  tax, 
laid  on  all  property  alike,  and  not  levied  on  goods  in  course  of  exportation, 
nor  because  of  their  intended  exportation,  is  not  within  the  constitutional 
prohibition^  How  can  the  officers  of  the  United  States,  or  of  the  States,  know 
that  goods  apparently  part  of  the  general  mass,  and  not  in  the  course  of 
exportation,  will  ever  be  exported?  Will  the  mere  word  of  the  owner  that 
they  are  intended  for  exportation  make  them  exports?  This  cannot  for  a 
moment  be  contended.  It  would  not  be  true,  and  would  lead  to  the  greatest 
frauds.  It  is  true,  as  was  conceded  in  Coe  v.  Errol,  that  the  prohibition  to 
the  States  against  laying  duties  on  imports  or  exports  related  to  imports 
from  and  exports  to  -foreign  countries;  yet  the  decision  in  that  case  was 
based  on  the  postulate  that  when  such  imposts  or  duties  are  laid  on  imports 
or  exports  from  one  State  to  another  it  amounts  to  a  regulation  of  com- 
merce among  the  States,  and,  therefore,  5s  an  invasion  of  the  exclusive  power 
of  Congress ;  so  that  the  analogy  between  the  two  cases  holds  good,  and  what 
would  be  constitutional  or  unconstitutional  in  the  one  case  would  be  constitu- 
tional or  unconstitutional  in  the  other." 

65  92  U.  S.  372 ;  23  L.  ed.  657. 

«181  U.  S.  283:  21  Slip.  Ct.  Rep.  648;  45  L.  ed.  862. 


Federal  Powees  of  Taxation.  613 

ordinary  bills  of  lading,  and  of  ten  cents  on  export  bills  of  lading. 
To  the  contention  that  the  tax  was  on  the  bills  of  lading  and  not 
one  on  the  articles  exported,  the  court  say:  "  The  fact  that  Con- 
gress has  not  graduated  the  stamp  tax  on  bills  of  lading  does  not 
affect  the  question  of  power.  .  .  .  The  question  of  the  power 
is  not  to  be  determined  by  the  amount  of  the  burden  attempted  to 
be  cast.  .  .  .  Constitutional  mandates  are  imperative.  The 
question  is  never  one  of  amount,  but  one  of  power.  The  appli- 
cable maxim  is  ohsta  principiis,  not  de  minimis  non  curat  lex."  m 
In  Cornell  v.  Coyne08  was  sustained  the  imposition  of  the  same 
manufacturing  tax  on  an  article  manufactured  for  export,  and 
in  fact  exported,  as  upon  other  similar  articles  not  intended  for 
export,  the  court  saying  that  such  a  tax  is  not  on  the  articles 
exported  u  but  is  only  a  tax  or  duty  on  the  manufacturing  of 
articles  in  order  to  prepare  them  for  export."  "  The  true  con- 
struction of  the  constitutional  provision,"  the  opinion  continues, 
"  is  that  no  burden  by  way  of  tax  or  duty  can  be  cast  upon  the 
exportation  of  articles,  and  does  not  mean  that  articles  exported 
are  relieved  from  the  prior  ordinary  burdens  of  taxation  which 
rest  upon  all  property  similarly  situated."  ^ 

§  278.  Direct  Taxes.70 

The  Constitution  provides  that  capitation  and  other  direct  taxes 
levied  by  Congress  shall  be  apportioned  among  the  States  in  pro- 

67  Four  justices  dissented.  They  say:  "Here,  the  small  duty  imposed, 
without  reference  to  the  kind,  quality,  or  value  of  the  articles  exported, 
renders  it  certain  that  when  Congress  imposed  such  duty  specifically  on  the 
vellum,  parchment,  or  paper  upon  which  the  bill  of  lading  was  written  or 
printed,  it  meant  what  is  so  plainly  said;  and  no  ground  exists  to  impute  a 
purpose  by  indirection  to  tax  the  articles  exported."  The  dissenting  justices 
also  urge  that  the  practice  of  the  government  for  more  than  a  century  should 
be  held  controlling. 

63  192  U.  S.  418;  24  Sup.  Ct.  Rep.  383;  48  L.  ed.  504. 

63  Two  justices  dissented,  holding  that  inasmuch  as  there  was  no  appreciable 
interval  of  time  between  the  commencement  of  manufacture  and  the  prepara- 
tion for  exportation,  it  could  not  be  reasonably  said  that  the  articles  had 
become  a  part  of  the  general  mass  of  property  in  the  locality  of  manufacture, 
and  as  such  subject  to  a  tax  that  could  be  distinguished  from  a  tax  upon 
the  articles  as  subject  of  export. 

to  For  a  discussion  of  direct  taxes  with  reference  to  the  Territories  and  the 
District  of  Columbia,  see   Chapter  XXVI. 


614  United  States  Constitutional  Law. 

portion  to  their  respective  populations.  In  a  number  of  instances 
the  constitutionality  of  federal  taxes  not  thus  apportioned  has 
been  questioned  upon  the  ground  that  they  were,  within  the  con- 
stitutional meaning  of  the  word,  direct  taxes.  The  decision  of 
the  Supreme  Court  in  each  of  these  cases  in  which  this  point  has 
been  raised  has  supplied  an  authoritative  determination  only  as 
to  the  direct  or  indirect  character  of  the  particular  taxes  in  ques 
tion.  From  these  decisions,  however,  a  judicial  definition  of 
direct  taxes  may  be  drawn  which  makes  the  term  include  all  taxes 
levied  upon  property,  real  or  personal,  or  upon  the  income  de- 
rived from  such  property,  and  all  capitation  or  poll  taxes.  A 
review  of  the  cases  will  show  that  only  within  recent  years  has 
the  court  been  willing  to  adopt  this  comprehensive  definition,  and, 
when  it  finally  did  so,  the  decision  came  as  a  surprise  to  very 
many  of  the  lawyers  and  courts  of  the  country. 

In  1798  in  Hylton  v.  United  States71  it  was  held  that  a  tax  on 
carriages  was  not  a  direct  tax.  Chase  in  his  opinion  said :  "  The 
Constitution  evidently  contemplated  no  taxes  as  direct  taxes,  but 
only  such  as  Congress  could  lay  in  proportion  to  the  census.  The 
rule  of  apportionment  is  only  to  be  adopted  in  such  cases  where 
it  can  reasonably  apply;  and  the  subject  taxed  must  ever  deter- 
mine the  application  of  the  rule.  If  it  is  proposed  to  tax  any 
specific  article  by  the  rule  of  apportionment,  and  it  would  evi- 
dently create  great  inequality  and  injustice,  it  is  unreasonable 
to  say  that  the  Constitution  intended  such  tax  to  be  laid  by  that 
rule.  ...  I  am  inclined  to  think,  but  of  this  I  do  not  give  a 
judicial  opinion,  that  the  direct  taxes  contemplated  by  the  Con- 
stitution, are  only  two,  to  wit,  a  capitation,  or  poll  tax,  simply, 
without  regard  to  property,  profession,  or  any  other  circumstance ; 
and  a  tax  on  land." 

Paterson  in  his  opinion  said :  "  Whether  direct  taxes,  in  the 
sense  of  the  Constitution,  comprehend  any  other  tax,  than  a  capi- 
tation tax  and  a  tax  on  land,  is  a  questionable  point.  If  Con- 
gress, for  instance,  should  tax,  in  the  aggregate  or  mass,  things 
that  generally  pervade  all  the  States  in  the  Union,  then,  perhaps, 

713  Dall.  171;  1  L.  ed.  556. 


Federal  Powers  of  Taxation.  615 

the  rule  of  apportionment  would  be  the  most  proper,  especially  if 
an  assessment  was  to  intervene.  This  appears  from  the  practice 
of  some  of  the  States  to  have  been  considered  as  a  direct  tax. 
Whether  it  be  so,  under  the  Constitution  of  the  United  States,  is 
a  matter  of  some  difficulty;  but  as  it  is  not  before  the  court,  it 
would  be  improper  to  give  any  decisive  opinion  upon  it.  I  never 
entertained  a  doubt  that  the  principal,  I  will  not  say  the  only  ob- 
jects, that  the  framers  of  the  Constitution  contemplated  as  falling 
within  the  rule  of  apportionment,  were  a  capitation. tax  and  a  tax 
on  land." 

Iredell,  in  his  opinion,  said :  "As  all  direct  taxes*  must  be  ap- 
portioned, it  is  evident  that  the  Constitution  contemplated  none 
as  direct  but  such  as  could  be  apportioned.  If  this  cannot  be 
apportioned,  it  is,  therefore,  not  a  direct  tax  in  the  sense  of  the 
Constitution.    That  this  tax  cannot  be  apportioned  is  evident." 

In  Pacific  Insurance  Co.  v.  Soule72  a  tax  on  receipts  of  insur- 
ance companies  was  held  to  be  not  a  direct  tax,  the  dicta  in  Hylton 
v.  United  States  being  relied  upon  as  authority. 

In  Veazie  Bank  v.  Fenno73  a  tax  on  the  circulating  notes  of 
state  banks  was  held  to  be  an  indirect  tax. 

In  Scholey  v.  Rew74  a  tax  on  succession  to  real  estate  was  held 
indirect,  the  tax  being  declared  to  be  one  not  on  the  land,  but 
upon  the  right  of  succession.  The  court  say :  "  Whether  direct 
taxes,  in  the  sense  of  the  Constitution,  comprehend  any  other  tax 
than  a  capitation  tax  and  a  tax  on  land  is  a  question  not  abso- 
lutely decided,  nor  is  it  necessary  to  determine  it  in  the  present 
case,  as  it  is  expressly  decided  that  the  term  does  not  include  the 
tax  on  income,  which  cannot  be  distinguished  in  principle  from 
a  succession  tax  such  as  the  one  involved  in  the  present  con- 
troversy 


n  ~s 


72  7  Wall.  433;   19  L.  ed.  95. 

73  8  Wall.  533 ;  19  L.  ed.  482. 

74  23  Wall.  331;  23  L.  ed.  99. 

75  Citing  Ins.  Co.  v.  Soule,  7  Wall.  433;  19  L.  ed.  95;  Veazie  Bank  v.  Fenno, 
8  Wall.  533;  19  L.  ed.  482. 


616  United  States  Constitutional  Law. 

In  Springer  v.  United  States70  the  income  taxes  provided  for 
by  the  law  of  1862  were  held  not  to  be  direct  taxes.  After  enumer- 
ating the  various  direct  taxes  previously  levied,  the  court  say: 
"  It  will  thus  be  seen  that  wherever  the  government  has  imposed 
a  tax  which  it  recognized  as  a  direct  tax,  it  has  never  been  applied 
to  any  objects  but  real  estate  and  slaves.  The  latter  application 
may  be  accounted  for  upon  two  grounds:  1.  In  some  of  the 
States  slaves  were  regarded  as  real  estate ;  and,  2,  such  an  exten- 
sion of  the  tax  lessened  the  burden  upon  the  real  estate  where 
slavery  existed,  while  the  result  to  the  National  Treasury  was 
the  same.  .  .  .  This  uniform  practical  construction  of  the 
Constitution  touching  so  important  a  point,  through  so  long  a 
period,  by  the  legislative  and  executive  departments  of  the  govern- 
ment, though  not  conclusive,  is  a  consideration  of  great  weight" 

After  reviewing  earlier  cases  and  citing  the  opinions  of  leading 
commentators,  the  opinion  concludes :  "  Our  conclusions  are,  that 
direct  taxes,  within  the  meaning  of  the  Constitution,  are  only 
capitation  taxes,  as  expressed  in  that  instrument,  and  taxes  on 
real  estate." 

§  279.  Income  Tax  Case  — Pollock  v.  Farmers'  L.  &  T.  Co. 

The  foregoing  line  of  cases,  concluding  with  the  emphatic  asser- 
tion of  a  unanimous  court  in  Springer  v.  United  States,  justly 
gave  rise  to  the  general  opinion  that  the  only  taxes  to  be  deemed 
direct  taxes  within  the  constitutional  meaning  of  the  term  were 
capitation  taxes  and  taxes  on  real  estate.  However,  in  the  so- 
called  Income  Tax  Case  —  Pollock  v.  Farmers'  Loan  and  Trust 
Co.77 — decided  in  1895,  this  doctrine  was  overthrown,  the  court 
upon  the  first  hearing  holding  that  taxes  on  the  rents  or  income 
of  real  estate  are  direct  taxes;  and,  upon  a  rehearing,  holding 
that  taxes  on  personal  property  or  on  the  income  derived  from 
personal  .property  are  equally  direct 

Upon  the  first  hearing  the  crucial  point  was,  of  course,  whether 
a  tax  upon  the  income  derived  from  real  estate  was  distinguish-' 

TO  102  IT.  S.  586 ;  26  "L.  ed.  253. 

"157  U.  S.  429;  15  Sup.  Ct.  Rep.  673;  39  L.  ed.  759,  and  158  U.  S.  001; 
15  Sup.  Ct.  Rep.  912;  39  L.  ed.  1108. 


Fedekae  Poweks  of  Taxation.  617 

able  from  a  tax  on  the  real  estate  itself.  This  being  decided  in 
the  negative,  it  necessarily  followed  that  inasmuch  as  a  tax  on  the 
real  estate  is  admittedly  a  direct  tax,  a  tax  on  the  income  derived 
therefrom  would  be  direct.  "  The  real  question  is,"  the  majority 
justices  declare,  "  is  there  any  basis  upon  which  to  rest  the  con- 
tention that  real  estate  belongs  to  one  of  the  two  great  classes  of 
taxes,  and  the  rent  or  income  which  is  the  incident  of  its  owner- 
ship belongs  to  the  other  ?  We  are  unable  to  perceive  any  ground 
for  the  alleged  distinction.  An  annual  tax  upon  the  annual  value 
or  annual  user  of  real  estate  appears  to  us  the  same  in  substance 
as  an  annual  tax  on  the  real  estate,  which  would  be  paid  out  of 
the  rent  or  income."  ,s 


78  In  a  dissenting  opinion,  concurred  in  by  Justice  Harlan,  Justice  White, 
after  a  review  of  the  earlier  adjudications,  say-;: 

'•  The  facts,  then,  are  briefly  these :  At  the  Tery  birth  of  the  government  a 
contention  arose  as  to  the  meaning  of  the  -word  '  direct.'  That  controversy 
was  determined  by  the  legislative  and  executive  departments  of  the  govern- 
ment. Their  action  came  to  this  court  for  review,  and  it  was  approved. 
Every  judge  of  this  court  who  expressed  an  opinion,  made  use  of  language 
which  clearly  showed  that  he  thought  that  the  word  *  direct '  in  the  Con- 
stitution applied  only  to  capitation  taxes  and  taxes  directly  on  land.  There- 
after the  construction  thus  given  was  accepted  everywhere  as  definite.  The 
matter  came  again  and  again  to  this  court,  and  in  every  case  the  original 
ruling  was  adhered  to.  The  suggestions  made  in  the  Hylton  case  were 
adopted  here,  and  in  the  last  case  here  decided,  reviewing  all  the  others,  thi3 
court  said  that  direct  taxes  within  the  meaning  of  the  Constitution  were  only 
taxes  on  land  and  capitation  taxes.  And  now,  after  a  hundred  years,  after 
long  continued  action  by  other  departments  of  the  government,  and  after 
repeated  adjudications  of  this  court,  this  interpretation  is  overthrown,  and 
the  Congress  is  declared  not  to  have  a  power  of  taxation  which  may  at  some 
time,  as  it  has  in  the  past,  prove  necessary  to  the  very  existence  of  the  govern- 
ment. By  what  process  of  reasoning  is  this  to  be  done?  By  resort  to  theories, 
in  order  to  construe  the  word  '  direct '  }n  its  economic  sense,  instead  of  in 
accordance  with  its  meaning  in  the  Constitution,  when  the  very  result  of  the 
history  which  I  have  thus  briefly  recounted  is  to  show  that  the  economic  con- 
struction of  the  word  was  repudiated  by  the  framer6  themselves,  and  has  been 
time  and  time  again  rejected  by  this  court:  by  a  resort  to  the  language  of  the 
framers  and  a  review  of  their  opinions,  although  the  facts  plainly  show  that 
they  themselves  settled  the  question  which  the  court  now  virtually  unsettles. 
In  view  of  all  that  has  taken  place  and  of  the  many  decisions  of  this  court, 
the  matter  at  issue  here  ought  to  be  regarded  as  closed  forever.  ...  It 
id  that  a  tax  on  the  rentals  is  a  tax  on  the  land,  as  if  the  Act  here  under 
consideration  imposed  an   immediate  tax  on   the   rentals.     This   statement,  I 


618  United  States  Constitutional  Law. 

A  rehearing  of  the  case  having  been  allowed  the  court  broad- 
ened still  further  the  scope  of  the  term  "  direct  taxes,"  making 
it  include  taxes  on  personal  property  and  upon  the  income  there- 
from.    To  this  doctrine  four  justices  dissented. 

In  Kicol  v.  Ames79  the  scope  of  the  doctrine  laid  down  in  the 
Income  Tax  Case  was  clearly  stated.  In  this  case  it  was  argued 
that  a  duty  levied  by  the  War  Revenue  Act  of  1898  upon  sales 
or  agreements  of  sale  of  products  or  merchandise  at  exchanges  or 
boards  of  trade  was  a  direct  tax  and  as  such  unconstitutional  be- 
cause not  properly  apportioned.  The  court,  however,  held  that 
the  tax  was  in  the  nature  of  a  duty  or  excise  tax  for  the  privilege 
of  doing  business  at  such  places  and  not  a  tax  on  the  products  or 
merchandise  sold,  and,  therefore,  not  a  direct  tax.  The  court 
say:  "  It  is  asserted  to  be  a  direct  tax,  because  it  is  a  tax  upon 
the  sale  of  property  measured  by  the  value  of  the  thing  sold,  and 
such  a  tax  is  a  direct  tax  upon  the  property  itself,  and,  therefore, 
subject  to  the  rule  of  apportionment.  Various  cases  are  cited, 
/from  Brown  v.  Maryland  (12  Wheat.  419;  6  L.  ed.  678)  down 
to  those  involving  the  validity  of  the  income  tax  (Pollock  v.  Trust 
"Co.,  157  U.  S.  429;  15  Sup.  Ct.  Eep.  673;  39  L.  ed.  759)  for  the 
purpose  of  proving  the  correctness  of  this  proposition.  All  the' 
cases  involved  the  question  whether  the  taxes  to  which  objection 
was  taken  amounted  practically  to  a  tax  on  the  property.  If  this 
tax  is  not  on  the  property,  or  on  the  sale  thereof,  then  these  cases' 
do  not  apply." 

In  Patton  v.  Brady80  a  tax  upon  tobacco,  however  prepared, 
manufactured,  and  sold,  for  consumption  or  sale,  was  held  not  a 
direct  tax  but  an  excise  tax, —  "  not  a  tax  upon  property  as  such, 

submit,  is  a  misconception  of  the  issue.  The  point  involved  is  whether  a  tax 
on  net  income,  when  such  income  is  made  up  by  aggregating  all  sources  of 
revenue  and  deducting  repairs,  insurance,  losses  in  business,  exemptions,  etc., 
becomes,  to  the  extent  to  which  real  estate  revenues  may  have  entered  into 
the  gross  income,  a  direct  tax  on  the  land  itself.  In  other  words,  does  that 
which  reaches  an  income,  and  thereby  reaches  rentals  indirectly,  and  reaches 
the  land  by  a  double  indirection,  amount  to  a  direct  levy  on  the  land  itself? 
It  seems  to  me  the  question  when  thus  accurately  stated  furnishes  its  own 
negative  response." 

79  173  U.  S.  509;  19  Sup.  Ct.  Rep.  522;  43  L.  ed.  786. 

80  184  IT.  S.  608;  22  Sup.  Ct  Rep.  493;  46  L.  ed.  713. 


Federal  Powebs  of  Taxation.  619 

but  upon  certain  kinds  of  property,   having  reference  to   their 
origin  and  intended  use." 

In  Spreckles  Sugar  Refining  Co.  v.  McClain81  the  special 
excise  tax  imposed  on  sugar  refining  by  the  act  of  1898,  and 
measured  by  the  gross  annual  receipts  in  excess  of  a  named  sum, 
"was  held  to  be  not  a  direct  tax.  "  Clearly,"  the  court  say,  u  the 
tax  is  not  imposed  upon  gross  annual  receipts  as  property,  but 
only  in  respect  of  the  carrying  on  or  doing  the  business  of  refin- 
ing sugar.  It  cannot  be  otherwise  regarded  because  of  the  fact 
that  the  amount  of  the  tax  is  measured  by  the  amount  of  the  gross 
annual  receipts." 

§  280.  The  Federal  Corporation  Tax  of  1909. 

Section  38  of  the  Tariff  Law  of  1909  contains  the  provision 
that  every  corporation  "  organized  for  profit  and  having  a  capital 
stock  represented  by  shares  .  .  .  shall  be  subject  to  pay  annu- 
ally a  special  excise  tax  with  respect  to  the  carrying  on  or  doing 
business  by  such  corporation  .  .  .  equivalent  to  one  per  centum 
upon  the  entire  net  income  over  and  above  five  thousand  dollars 
received  by  it  from  all  sources." 

The  constitutionality  of  this  tax,  as  being  indirect,  would  seem 
to  be  supported  by  the  decisions  cited  in  the  preceding  paragraphs, 
and  by  that  in  Knowlton  v.  Moore,82  considered  in  the  next  para- 
graph. It  is  true  that  in  the  Income  Tax  Case83  the  court  held 
that  a  tax  upon  income  from  property  is  not  to  be  distinguished 
from  a  tax  on  the  property  itself,  but  it  is  probable  that  the  tax 
levied  by  Section  38  of  the  Tariff  Law  of  1909  will  be  held  to  be 
a  tax  not  on  the  income  of  the  corporations,  but  one  in  the  nature 
of  a  franchise  or  excise  tax.  The  constitutionality  of  such  a  fed- 
eral tax  upon  corporations  chartered  by  the  States  would  seem  to 
be  disposed  of  by  the  argument  in  Veazie  Bank  v.  Fenno.84 

81  192  D.  S.  397;  24  Sup.  Ct.  Rep.  376;  48  L.  ed.  496. 
«2  178  U.  S.  41 ;  20  Sup.  Ct.  Rep.  747;  44  L.  ed.  909. 

83  Pollock  v.  Farmers  L.  &  T.  Co.,  158  U.  S.  601;  15  Sup.  Ct.  Rep.  912;  39 
L.  ed.  1108. 

84  8  Wall.  533;  19  L.  ed.  482.  See  also  South  Carolina  v.  United  States,  199 
U.  S.  437;  26  Sup.  Ct  Rep.  110;  50  L.  ed.  261. 


620  Ukited  States  Constitutional  Law. 

§  281.  Federal  Inheritance  Taxes  not  Direct. 

The  constitutional  definition  of  a  direct  tax  was  again  raised 
in  Knowlton  v.  Moore55  with,  reference  to  the  constitutionality 
of  the  inheritance  taxes  levied  by  the  War  Revenue  Act  of  1898. 
The  court  applied  the  well  established  doctrine  that  the  taxes  in 
question  were  not  upon  the  property  inherited  but  upon  the  right 
to  inherit,  and,  therefore,  not  being  taxes  upon  property  but  upon 
a  right,  were  in  the  nature  of  an  excise  tax,  and  as  such  indirect.8' 

85  17i8  U.  S.  41;  20  Sup.  Ct.  Rep.  747;  44  L.  ed.  909. 

86  To  the  argument  that  the  doctrine  declared  in  Scholey  v.  flew  (23  Wall. 
331;  23  L.  ed.  99),  had  been  practically  overruled  by  the  Income  Tax  Case, 
the  court  say: 

"  It  is  asserted  that  it  was  decided  in  the  Income  Tax  Cases  that  in  order  to 
determine  whether  a  tax  be  direct  within  the  meaning  of  the  Constitution,  it 
must  be  ascertained  whether  the  one  upon  whom  by  law  the  burden  of  paying 
it  is  first  cast  can  thereafter  shift  it  to  another  person.  If  he  cannot,  the 
tax  would  then  be  direct  in  the  constitutional  sense,  and  hence,  however 
obvious  in  other  respects  it  might  be  a  duty,  impost,  or  excise,  it  cannot  be 
levied  by  the  rule  of  uniformity,  and  must  be  apportioned.  From  this  assumed 
premise  it  is  argued  that  death  duties  cannot  be  shifted  from  the  one  on 
whom  they  are  first  east  by  law,  and  therefore  they  are  direct  taxes  requiring 
apportionment.  The  fallacy  is  in  the  premise  It  is  true  that  in  the  income 
tax  cases  the  theory  of  certain  economists  by  which  direct  and  indirect  taxes 
are  classified  with  reference  to  the  ability  to  shift  the  same  was  adverted  to. 
But  this  disputable  theory  was  not  the  basis  of  the  conclusion  of  tlie  court. 
The  constitutional  meaning  of  the  word  direct  was  the  matter  decided.  Con- 
sidering that  the  constitutional  rule  of  apportionment  had  its  origin  in  the 
purpose  to  prevent  taxes  on  persons  solely  because  of  their  general  ownership 
of  property  from  being  ievied  by  any  other  rule  than  that  of  apportionment, 
two  things  were  decided  by  the  court:  First,  that  no  sound  distinction  existed 
between  a  tax  levied  on  a  person  solely  because  of  his  general  ownership  of 
real  property,  and  the  same  tax  imposed  solely  because  of  his  general  owner- 
ship of  personal  property.  Secondly,  that  the  tax  on  the  income  derived  from 
such  property,  real  or  personal,  was  the  legal  equivalent  of  a  direct  tax  on 
the  property  from  which  said  income  was  derived,  and  hence  must  be  appor- 
tioned. These  conclusions,  however,  lend  no  support  to  the  contention  that  it 
was  decided  that  duties,  imposts  and  excises  which  are  not  the  essential 
equivalent  of  a  tax  on  property  generally,  real,  or  personal,  solely  because  of 
its  ownership,  must  be  converted  into  direct  taxes,  because  it  is  conceived  that 
it  would  be  demonstrated  by  a  close  analysis  that  they  could  not  be  shifted 
from  the  person  upon  whom  they  first  fall.  The  proposition  now  Telied  upon 
was  considered  and  refuted  in  Nicol  v.  Ames,  173  U.  S.  509;  19  Sup.  Ct.  Rep. 
522;  43  L.  ed.  786." 


Federal  Poweks  of  Taxation.  621 

§  282.  Federal  Taxation  and  Due  Process  of  Law:  Hearing  Re- 
quired. 
Due  process  of  law  requires  that  in  the  ease  of  an  ad  valorem 
tax  an  opportunity  shall  be  given  the  taxpayer  to  appear  and  give 
evidence  as  to  the  proper  valuation  of  the  property  which  is 
assessed.87  In  other  cases,  however,  no  notice  or  opportunity  for  . 
hearing  need  be  given  the  taxpayer.  In  Hagar  v.  Reclamation  jLU 
District88  the  court  say:  "  Of  the  different  kinds  of  taxes  which 
the  State  may  impose,  there  is  a  vast  number  of  which,  from  their 
nature,  no  notice  can  be  given  to  the  taxpayer,  nor  would  notice 
be  of  any  possible  advantage  to  him,  such  as  poll  taxes,  license 
t:ixes  (not  dependent  upon  the  extent  of  his  business)  and  gen- 
erally, specific  taxes  en  things  or  persons  or  occupations.  In  such 
cases  the  legislature,  in  authorizing  the  tax,  fixes  its  amount,  and 
that  is  the  end  of  the  matter.  If  the  tax  be  not  paid,  the  property 
of  the  delinquent  may  be  sold  and  he  be  thus  deprived  of  his 
property.  Yet  there  can  be  no  question,  that  the  proceeding  is 
due  process  of  law,  as  there  is  no  inquiry  into  the  weight  of  evi- 
dence, or  other  element  of  a  judicial  nature,  and  nothing  could  be 
changed  by  hearing  the  taxpayer.  Xo  right  of  his  is,  therefore, 
invaded.  Tims,  if  the  tax  on  animals  be  a  fixed  sum  per  head, 
or  on  articles  a  fixed  sum  per  yard  or  bushel  or  gallon,  there  is 
nothing  the  owner  can  do  which  can  affect  the  amount  to  be  col- 
lected from  him.  So,  if  a  person  wishes  a  license  to  do  business 
of  a  particular  kind  or  at  a  particular  place,  such  as  keeping  a 
hotel  or  restaurant,  or  selling  liquors  or  cigars  or  clothes,  he  has 
only  to  pay  the  amount  required  by  the  law  and  go  into  business. 
There  is  no  need  in  such  cases  for  notice  or  hearing.  So,  also, 
if  taxes  are  imposed  in  the  shape  of  licenses  for  privileges,  such 
as  those  on  foreign  corporations  for  doing  business  in  the  State, 
or  on  domestic  corporations  for  franchises,  if  the  parties  desire 
the  privilege,  they  have  only  to  pay  the  amount  required.  In 
such  cases  there  is  no  necessity  for  notice  or  hearing.    The  amount 

«7  0r.  if  it  be  a  special  assessment  for  the  purpose  of  some  public-  improve- 
ment, as  to  the  extent  to  which  the  property  in  question  will  be  benefited 
thereby. 

88  111   l\  S.  701:  4  Sup.  Ct.  Rep.  663;  28  L.  ed.  569. 


622  United  States  Constitutional  Law. 

of  the  tax  would  not  be  changed  by  it  But  where  a  tax  is  levied 
on  property,  not  specifically  but  according  to  its  value,  to  be  ascer- 
tained by  assessors  appointed  for  that  purpose  upon  such  evidence 
as  they  may  obtain,  a  different  principle  comes  in.  The  officers,  in 
estimating  the  value,  act  judicially,  and  in  most  of  the  States  pro- 
vision is  made  for  the  correction  of  errors  committed  by  them, 
through  boards  of  revision  or  equalization,  sitting  at  designated 
periods  provided  by  law,  to  hear  complaints  respecting  the  justice 
of  the  assessments.  The  law  in  prescribing  the  time  when  such 
complaints  will  be  heard,  gives  all  the  notice  required,  and  the 
proceeding  by  which  the  valuation  is  determined,  though  it  may 
be  followed,  if  the  tax  be  not  paid,  by  a  sale  of  the  delinquent's 
property,  is  due  process  of  law." 

§  283.  Hearing  Before  Administrative  Tribunal  Sufficient. 

It  is  not  necessary  that  the  hearing  thus  required  in  the  case 
of  ad  valorem  taxes  should  be  before  a  court  of  justice.  The 
hearing  may  be  had  and,  in  fact,  is  usually  had,  before  an  admin- 
istrative board  whose  action  in  this  respect  is  judicial  in  character 
and  whose  determinations  may  be  final  and  conclusive  in  the  mat- 
ter. Thus,  for  example,  by  Section  2930  of  the  Revised  Statutes, 
it  is  provided  that  in  the  matter  of  appraisement  of  imports  an 
appeal  shall  be  allowed  the  importer  from  the  collector  of  customs 
to  "  one  discreet  and  experienced  merchant  to  be  associated  with 
one  of  the  general  appraisers  wherever  practicable,  or  two  discreet 
and  experienced  merchants,"  but  that  "  if  they  shall  disagree,  the 
collector  shall  decide  between  them;  and  the  appraisement  thus 
determined  shall  be  final  and  be  deemed  to  be  the  true  value,  and 
the  duties  shall  be  levied  thereon  accordingly."  Provision  is, 
however,  made  for  relief  in  cases  where  the  collectors  have  acted 
fraudulently  or  upon  a  principle  not  sanctioned  by  law,  or  where 
they  have  in  any  way  transcended  the  powers  given  them  by 
Congress. 


Federal  Powers  of  Taxation.  623 

In  Hilton  v.  Merritt89  the  constitutionality  of  these  provisions 
was  upheld.  In  Auffmordt  v.  Hedden90  the  court  say :  u  Xor  is 
there  anything  in  the  objection  that  Section  2930  of  the  Revised 
Statutes  is  unconstitutional  in  making  the  decision  of  the  apprais- 
ers final,  and  that  the  plaintiffs  had  a  right  to  have  the  question 
of  the  dutiable  value  of  the  goods  passed  upon  by  a  jury.  As 
said  before,  the  government  has  the  right  to  prescribe  the  condi- 
tions attending  the  importation  of  goods  upon  which  it  will  permit 
the  collector  to  be  sued.  One  of  those  conditions  is  that  the  ap- 
praisal shall  be  regarded  as  final;  and  it  has  been  held  by  this 
court,  in  Arnson  v.  Murphy  (109  U.  S.  238 ;  3  Sup.  Ct.  Rep.  184; 
27  L.  ed.  920),  that  the  right  to  bring  such  a  suit  is  exclusively 
statutory,  and  is  substituted  for  any  and  every  common-law  right. 
The  action  is,  to  all  intents  and  purposes,  with  the  provision  for 
refunding  the  money  if  the  importer  is  successful  in  the  suit,  an 
action  against  the  government  for  moneys  in  the  treasury.  The 
provision  as  tp  the  finality  of  the  appraisement  is  virtually  a  rule 
of  evidence  to  be  observed  in  the  trial  of  the  suit  brought  against 
the  collector." 

Tn  this  case  it  was  held  that  it  was  not  necessary,  and  that  it 
had  not  been  the  intention  of  Congress  that  the  hearing  before 
the  appraisers  or  collector  should  be  characterized  by  all  the  for- 
malities of  a  court  of  law,  but  that  the  proceedings  might,  and 
from  necessity  would  generally  have  to  be  of  a  summary  char- 
acter. The  court  thus  held  that  due  process  of  law  had  not  been 
denied  because  the  importer  or  his  agent  had  been  practically 
excluded  from  the  hearing  upon  the  reappraisement,  that  he  had 
not  been  permitted  to  confront  the  opposing  witnesses  by  testimony 
on  his  own  behalf,  or  allowed  the  aid  of  counsel.  "  Xo  govern- 
ment," said  the  court,  "  would  collect  the  revenues  or  perform  its 
necessary  functions,  if  the  system  contended  for  by  the  plaintiffs 
were  to  prevail." 

89  110  U.  S.  97;  3  Sup.  Ct.  Rep.  548;  28  L.  ed.  83. 
M>137  U.  S.  310;   11  Sup.  Ct.  Rep.  103;  34  L.  ed.  674. 


62-i  United  States  Constitutional  Law. 

§  284.  Summary  Modes  of  Collection. 

For  the  collection  of  taxes,  as  well  as  in  the  appraisement  of 
property  for  taxation,  summary  modes  of  procedure  may  be  had, 
the  justification  being  that  without  such  means  no  government 
could  maintain  itself.91 

si  The  leading  case  is  Murray's  Lessee  v.  Hoboken  Land  Improvement  Co., 
18  How.  272;  15  L.  ed.  372.  In  this  case  the  account  of  a  collector  at 
customs  having  been  audited  by  the  First  Auditor  of  the  Treasury  Depart- 
ment, and  certified  by  the  First  Comptroller,  a  distress  warrant  for  the 
balance  found  due  the  United  States  was  issued  by  the  Solicitor  of  the 
Treasury  in  accordance  with  the  provisions  of  an  act  of  Congress,  and  levied 
ujion  the  lands  of  the  collector.  To  the  contention  that  this  proceeding  denied 
to  the  collector  due  process  of  law  the  court  replied :  "  Tested  by  the  common 
and  statute  law  of  England  prior  to  the  emigration  of  our  ancestors,  and  by 
the  laws  of  many  of  the  States  at  the  time  of  the  adoption  of  this  amendment, 
the  proceedings  authorized  by  the  act  of  1820  cannot  be  denied  to  be  duo 
process  of  law,  when  applied  to  the  ascertainment  and  recovery  of  balances 
due  to  tha  government  from  a  collector  of  customs,  unless  there  exists  in  the 
Constitution  some  other  provision  which  restrains  Congress  from  authorizing 
Mich  proceedings.  For,  though  '  due  process  of  law '  generally  implies  and 
includes  actor,  reus,  judex,  regular  allegations,  opportunity  to  answer,  and  a 
trial  according  to  some  settled  course  of  judicial  proceedings  (2  Inst.  47,  50; 
Hoke  v.  Henderson,  4  Dev.  N.  C.  15;  Taylor  v.  Porter,  4  Hill.  14ft;  Van 
Zandt  v.  Waddel,  2  Yerg.  260;  Bank  v.  Cooper,  Id.  5D9;  Jones'  Heirs  v. 
Perry,  10  Yerg,  59;  Greene  v.  Briggs,  1  Curt.  311),  yet  this  is  net  uni- 
versally true.  There  may  be,  and  we  have  seen  that  there  are,  cases,  under 
the  law  of  England  after  Magna  Charta,  and  as  it  was  brought  to  this  country 
and  acted  on  here,  in  which  process,  in  its  nature  final,  issues  against  the 
body,  lands,  and  goods  of  certain  public  debtors  without  any  such  trial;  and 
this  brings  us  to  the  question  whether  those  provisions  of  the  Constitution 
which  relate  to  the  judicial  power  are  incompatible  with  these  proceedings. 
The  power  to  collect  and  disburse  revenue,  and  to  make  all  laws 
which  shall  be  necessary  and  proper  for  carrying  that  poAver  into  effect, 
includes  all  known  and  appropriate  means  of  effectually  collecting  and  dis- 
bursing that  revenue,  unless  some  such  means  should  be  forbidden  in  some 
other  part  of  the  Constitution.  The  power  has  not  been  exhausted  by  the 
receipt  of  the  money  by  the  collector.  Its  purpose  is  to  raise  money,  and  use 
it  in  payment  of  the  debts  of  the  government ;  and,  whoever  may  have  posses- 
sion of  the  public  money  until  it  is  actually  disbursed,  the  power  to  use  those 
known  and  appropriate  means  to  secure  its  due  application  continues.  As 
we  have  already  shown,  the  means  provided  by  the  act  of  1820  do  not  differ 
in  principle  from  those  employed  in  England  from  remote  antiquity  —  and  in 
many  of  the  States,  so  far  as  we  know,  without  objection  —  for  this  purpose, 
at  the  time  the  Constitution  was  formed.  It  may  be  added  that  probably 
there  are  few  governments  which  do  or  can  permit  their  claims  for   public 


Federal  Poweks  of  Taxation.  625 

§  285.  Notice. 

Due  process  of  law  in  matters  of  taxation  does  not  require  the 
same  kind  of  notice  as  is  required  in  a  suit  of  law,  or  in  proceed- 
ings for  taking  private  property  under  the  power  of  eminent  do- 
main. Xo  violation  of  due  process  of  law  is  committed  when  a  tax 
is  collected  according  to  customary  forms  and  established  usages, 
or  in  subordination  to  the  principles  which  underlie  them.  "  This 
must  be  so,"  the  court  say  in  King  v.  Mulling*8  "  else  the  existence 
of  government  might  be  put  in  peril  by  the  delays  attendant  upon 
formal  judicial  proceedings  for  the  collection  of  taxes."  M 

In  most  of  the  States  it  is  provided  by  statute  that  the  assess- 
ment or  collection  of  taxes  shall  not  be  restrained  by  a  judicial 
writ;  and,  since  1867,  by  act  of  Congress  it  has  been  provided 
that  "  no  suit  for  the  purpose  of  restraining  the  assessment  or 
collection  of  taxes  shall  be  maintained  in  any  court"  w 

The  constitutionality  of  this  provision  has  been  sustained 
whenever  questioned,  administrative  necessity  furnishing  the 
justification.  In  Cheatham  v.  United  States95  the  court  say:  u  If 
there  existed  in  the  courts,  state  or  national,  any  general  power  of 
impeding  or  controlling  the  collection  of  taxes  or  relieving  the 
hardship  incident  to  taxation,  the  very  existence  of  tbs  Govern- 
ment might  be  placed  in  the  power  of  a  hostile  judiciary."  And 
in  the  Railroad  Tax  Cases96  the  court  say:  a  The  Government  of 
rhe  United  States  has  provided,  both  in  the  customs  and  in  the 

taxes,  either  on  the  citizen  or  the  officer  employed  for  their  collection  or 
disbursement,  to  become  subjects  of  judicial  controversy,  according  to  (he 
course  of  the  law  of  the  land.  Imperative  necessity  has  forced  a  distinction 
between  such  claims  and  all  others,  which  has  sometimes  been  carried  out  by 
summary  methods  of  proceeding,  and  sometimes  by  systems  of  fines  ai;d 
penalties,  but  always  in  some  way  observed  and  yielded  to." 
I  :   U.  B.  404:   is  Sup.  ft.  Rep.  585;  43  L.  ed.  214. 

93  Of.  Bell's  Gap  R.  Co.  v.  Pennsylvania.  134  V.  S.  232;  10  Sup.  Ct.  Rep.  53i.; 
.33  L.  ed.  892;  Turpin  v.  Lemon.  1*7  U.S. 51  j  23  Sup.  Ct.  Rep.  20 ;  47  L.  ed.  70; 
Londoner  v.  Denver.  210  U.  S.  373  ;  28  Sup.  Ct.  Rep.  708 ;  52  L.  ed.  1103;  Judsor., 
On  Taxation,  Chapter  8,  and  McGehee,  Due  Process  of  Lair.  pp.  233/f. 

9*  Rev.  Stat..  §  3224.  Thi9  provision  of  course  applies  only  to  the  federal 
courts,  and  by  the  courts  has  been  construed  to  relate  only  to  federal  taxes. 
In  1000  a  bill  was  introduced  into  Congress  to  amend  this  section  so  as  to 
make  it  apply  to  state,  county,  municipal  and  district  taxes  as  well. 

KM  U.  B.  85;  23  L.  ed.  561 

96  92  U.  S.  57.-. ;  23  L.  ed.  663. 

40 


626  United  States  Constitutional  Law. 

internal  revenue,  a  complete  system  of  corrective  justice  in  regard 
to  taxes  imposed  by  the  General  Government,  which  in  both 
branches  is  founded  upon  the  idea  of  appeals  within  the  executive 
departments.  If  the  party  aggrieved  does  not  obtain  satisfaction 
in  this  mode,  there  are  provisions  for  recovering  the  tax  after  it 
has  been  paid  by  suit  against  the  collecting  officer.  But  there  is  no 
place  in  this  system  for  an  application  to  a  court  of  justice  until 
after  the  money  is  paid.  That  there  might  be  no  misunderstand- 
ing of  the  universality  of  this  principle,  it  was  expressly  enacted, 
in  1867,  that  '  no  suit  for  the  purpose  of  restraining  the  assess- 
ment or  collection  of  any  tax  shall  be 'maintained  in  any  court.' 
(Rev.  Stat.,  §  3224.)  And  though  this  was  intended  to  apply 
alone  to  taxes  levied  by  the  United  States,  it  shows  the  sense  of 
Congress  of  the  evils  to  be  feared  if  courts  of  justice  could,  in  any 
case,  interfere  with  the  process  of  collecting  the  taxes  on  which 
the  Government  depends  for  its  continued  existence.  It  is  a  wise 
policy.  It  is  founded  on  the  simple  philosophy  derived  from  the 
experience  of  ages  that  the  payment  of  taxes  has  to  be  enforced 
by  summary  and  stringent  means  against  a  reluctant  and  often 
adverse  sentiment;  and  to  do  this  successfully,  other  instrumen- 
tal} ties  and  other  modes  of  procedure  are  necessary  than  those 
which  belong  to  a  court  of  justice." 

§  286.  Borrowing  Power  of  the  United  States:  Legal  Tender. 

The  Federal  Government  is  given  power  "  to  borrow  money  on 
the  credit  of  the  United  States." 

The  power  thus  given  is  free  from  limitations.  In  the  draft 
of  the  Constitution  reported  by  the  Committee  on  Detail  to  the 
Constitutional  Convention,  the  draft  read,  "  To  borrow  money 
and  emit  bills  on  the  credit  of  the  United  States."  The  express 
authorization  to  emit  bills  of  credit  was  stricken  out  by  the  Con- 
vention, but,  apparently,  not  with  the  intention  of  thereby  depriv- 
ing the  United  States  of  the  power,  but  that  the  power  would  be 
included  in  the  general  authority  to  borrow  money.  That  this 
is  so,  has  not  been  questioned  by  the  courts.  There  has,  however, 
been  serious  controversy  as  to  the  power  of  the  United  States  to 
give  a  legal  tender  character  to  these  bills  when  issued. 

The  debates  in  the  Constitutional  Convention,  and  other  pro- 


Federal  Powers  of  Taxation.  G27 

visions  of  the  Constitution,97  would  seem  to  indicate  an  intention 
upon  the  part  of  the  framers  of  the  Constitution  that  a  legal  ten- 
der character  might  be  given  by  Congress  only  to  the  metallic 
money  coined  by  the  United  States,  and  the  Supreme  Court  in 
Hepburn  v.  Griswold88  so  held  as  regards  the  payment  of  debts  be- 
tween private  parties  created  before  the  enactment  of  the  law.  In 
Knox  v.  Lee,09  however,  four  justices  dissenting,  this  doctrine  was 
overthrown,  and  the  issuance  of  legal  tender  notes  authorized  as  a  , 
legitimate  war  power.  And  finally,  in  the  Legal  Tender  Cases —  / 
Juillard  v.  Greenman1  the  authority  in  question  was  conceded  to 
exist  as  implied  in  the  general  power  to  borrow  money,  whether 
in  times  of  peace  or  of  war,  the  court  saying :  "  Such  being  our 
conclusion  in  matter  of  law,  the  question  whether  at  any  particu- 
lar time,  in  war  or  in  peace,  the  exigency  is  such,  by  reason  of 
unusual  and  pressing  demands  on  the  resources  of  the  govern- 
ment, or  of  the  inadequacy  of  the  supply  of  gold  and  silver  coin  to 
furnish  the  currency  needed  for  the  uses  of  the  government  and 
of  the  people,  that  it  is,  as  a  matter  of  fact,  wise  and  expedient 
to  resort  to  this  means,  is  a  political  question,  to  be  determined 
by  Congress  when  the  question  of  exigency  arises,  and  not  a 
judicial  question,  to  be  afterwards  passed  upon  by  the  courts." 

In  Knox  v.  Lee  it  is  to  be  observed  that  the  legal  tender  }«>wer 
is  deduced  not  wholly  from  the  power  to  borrow  money  but  from 
the  ensemble  of  powers  which  are  granted  to  the  United  States, 
which  aggregate  of  powers,  the  court  holds,  evidences  the  intention 
to  equip  the  Central  Government  with  all  the  powers  necessary 
for  its  maintenance  as  an  effective  sovereign  State.  The  doctrine 
thus  comes  perilously  near  to  an  acceptance  of  the  doctrine  of 
"  inherent  sovereign  powers."  2  Also  the  court  declare  that  it 
is  not  indispensable  to  the  existence  of  any  power  claimed  for  the 
!•'<  deral  Government  that  it  should  be  found  specified  in  the  words 
of  the  Constitution,  or  clearly  and  directly  traceable  to  some  one 
of  the  specified  powers,  but  that  its  existence  may  be  deduced  from 
a  combination  of  several  expressly  granted  powers. 

97  Cf.  Tucker's  argument,  The  Constitution  of  the  (nited  States,  I,  508#. 

98  8  Wall.  60S;  10  L.  ed.  fit*. 
93  12  Wall.  457;  20  L.  ed.  287. 

1  110  U.  S.  421  :   4  Sup.  Ct.  Rep.  122:  28  L.  ed.  204. 

2  See  Chapter  I1T  of  this  treatise. 


628  United  States  Constitutional  Law. 

The  various  powers'from  which,  in  the  aggregate,  the  legal  tender 
power  is  derived  are  summarized  in  the  following  paragraph, 
taken  from  the  opinion  of  the  court  in  Juillard  v.  Greenman : 

"  Congress  as  the  legislature  of  a  sovereign  Nation,  being  ex- 
pressly empowered  by  the  'Constitution  to  lay  and  collect  taxes, 
to  pay  the  debts  and  provide  for  the  common  defense  and  general 
welfare  of  the  United  States,  and  to  borrow  money  on  the  credit 
of  the  United  States,  and  to  coin  money  and  regulate  the  value 
thereof  and  of  foreign  coin ;  and  being  clearly  authorized,  as  inci- 
dental to  the  exercise  of  those  great  powers,  to  emit  bills  of  credit, 
to  charter  national  banks  and  to  provide  a  national  currency  for 
the  whole  people,  in  the  form  of  coin,  treasury  notes  and  national 
bank  bills ;  and  the  power  to  make  the  notes  of  the  government  a 
legal  tender  in  payment  of  private  debts  being  one  of  the  powers 
belonging  to  sovereignty  in  other  civilized  Xations,  and  not  ex- 
pressly withheld  from  Congress  by  the  Constitution ;  we  are 
irresistibly  impelled  to  the  conclusion  that  the  impressing  upon 
the  treasury  notes  of  the  United  States  the  quality  of  being  a  legal 
tender  in  payment  of  private  debts  is  an  appropriate  means,  condu- 
cive and  plainly  adapted  to  the  execution  of  the  undoubted  powers 
of  Congress,  consistent  with  the  letter  and  spirit  of  the  Constitu- 
tion and,  therefore,  within  the  meaning  of  that  instrument, '  neces- 
sary and  proper  for  carrying  into  execution  the  powers  rested  by 
this  Constitution  in  the  Government  of  the  United  States.'  ' 

As  regards  the  contention  that  the  effect  of  applying  the  legal 
tender  law  to  prior  contracted  debts  is  to  deprive  the  creditor  of 
property  without  due  process  of  law,  in  violation  of  the  Fifth 
Amendment,  the  court  in  Knox  v.  Lee  say :  "  That  provision  has 
always  been  understood  as  referring  only  to  a  direct  appropria- 
tion, and  not  to  consequential  injuries  resulting  from  the  exer- 
cise of  lawful  power.  It  has  never  been  supposed  to  have  any 
bearing  upon  or  to  inhibit  laws  that  indirectly  work  harm  and  loss 
to  individuals.  A  new  tariff,  an  embargo,  a  draft,  or  a  war.  may 
inevitably  bring  upon  individuals  great  losses,  may,  indeed,  render 
valuable  property  almost  valueless.  They  may  destroy  the  worth 
of  contracts.  But  whoever  supposed  that  because  of  this  a  tariff 
could  not  be  changed,  or  a  non-intercourse  act,  or  an  embargo  be 
enacted,  or  a  war  be  declared." 

52  7  A  vf 


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